R. v. Drummond, 2015 ONSC 4055

COURT FILE NO.: CR-14-40000509-0000

DATE: 20150626

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MESHACH DRUMMOND

COUNSEL:

Kathy Nedelkopoulos, for the Crown

Douglas Holt, for Meshach Drummond

HEARD: June 15-19, 2015

MacDonnell, J.

[1] On June 15, 2015, Meshach Drummond and Irma Galastica appeared before this court on an indictment charging them jointly with three counts: exercising control over C.V. for the purpose of aiding her to engage in prostitution, procuring C.V. to become a prostitute, and living on the avails of C.V.’s prostitution. They re-elected to be tried by a judge sitting without a jury and pleaded not guilty to all three counts. At the close of the case for the Crown, Ms Galastica changed her plea on the count of exercising control to guilty and the Crown elected not to proceed further against her on the other counts. Mr. Drummond elected to call no evidence in his defence.

[2] In the course of final submissions, Crown counsel conceded that there was no evidence that Mr. Drummond had procured C.V. to become a prostitute (count 2) and he was found not guilty of that charge. After hearing the submissions, I found Mr. Drummond not guilty on the remaining two counts as well. At the time of my decision I provided brief oral reasons and indicated that further reasons in writing would follow. These are those further reasons.

A. Background

[3] At the material time, C.V. was 17 years of age and living at home in North York. She had a troubled relationship with her parents, in part because of her use of alcohol and drugs. Around the end of December 2012 she decided that she wanted to earn money by working as a prostitute. She had no prior experience in that line of work.

[4] Irma Galastica was a prostitute who advertised her services online. C.V. saw Ms. Galastica’s advertisement and called her, seeking advice on how to get into the business. There is no suggestion that the advertisement was aimed at enlisting anyone to become a prostitute. Mr. Drummond is Ms Galatica’s boyfriend. There is no evidence that he had anything to do with the creation or the posting of Ms Galastica’s advertisement.

[5] C.V. and Ms Galastica agreed to meet at the Yorkdale Shopping Centre around the beginning of January, 2013. Mr. Drummond was not with Ms. Galastica at the outset of the meeting but he arrived about 10 minutes later. After a brief discussion between C.V. and Ms Galastica, Drummond drove the three of them to the Eaton Centre where they had something to eat. C.V. was not able to recall what she and Ms Galastica discussed while they ate but it would be a reasonable inference that it concerned the prostitution business. There is no evidence that Mr. Drummond participated in that discussion.

[6] After eating, C.V., Galastica and Drummond proceeded to a motel. C.V. did not know who made the decision to go to the motel, how that decision was made or even if the matter was discussed. She had no recollection of whether it was Drummond or Galastica who drove the car to the motel. There is no evidence as to whether a room had already been rented or, if so, when it was rented. In either event, there is no evidence as to who had rented it.

[7] In the week or so that followed, C.V. engaged in sexual acts for money on multiple occasions. There is no evidence that she did that as a result of any influence, persuasion or encouragement from Mr. Drummond. The evidence is clear that Ms Galastica was C.V.’s mentor and partner in the business. Among other things, Ms Galastica created an advertisement for C.V. to be posted online, she took the phone calls from clients in response to the advertisement, she arranged the ‘dates’, she was present when the sexual encounters occurred, and she took the money provided to C.V. by the clients There is no evidence that Mr. Drummond had anything to do with any of those things. In particular, he never received money from C.V., he never asked her for money, and he never had a discussion with her about money. Indeed, he never had a conversation with her about anything, let alone prostitution. As she described it, their interaction from the first to the last time they ever saw each other was limited to ‘hi, hello and goodbye’. Further, there is no evidence that Mr. Drummond ever had a discussion with Ms. Galastica in relation to C.V. or about C.V.’s earnings.

B. Discussion

Count One

[8] In count one, Mr. Drummond is charged that in the relevant time period he did “for the purpose of gain, exercise control over the movements of C.V. in such manner as to show that [he was] aiding C.V. to engage in prostitution, contrary to s. 212(1)(h) of the Criminal Code.”

[9] Apart from a single “outcall”, all of the sexual activity that C.V. engaged in for money occurred in the motel room. The one outcall was a ‘date’ with a client in a condominium apartment. Both Ms. Galastica and C.V. went on that date. The evidence is that Mr. Drummond drove them to the condominium and picked them up after. The Crown’s allegation in relation to count one is that by doing that Mr. Drummond exercised control over C.V.’s movements in order to aid her in engaging in prostitution.

[10] There is no evidence as to how it was determined that Mr. Drummond would drive C.V. and Ms. Galastica that evening or even whether there was any discussion about the matter. There is no evidence that Mr. Drummond had anything to do with arranging the date – it was almost certainly Ms Galastica who did that – and no evidence that Mr. Drummond had any conversation with C.V. about it. Nor is there any evidence that he directed, encouraged or recommended that she get into the car or that he offered to provide a ride. All that the evidence shows is that he drove the car. Notwithstanding that, the submission of the Crown was that because Mr. Drummond was in control of the motor vehicle, he was controlling C.V.’s movements for the purpose of aiding her in prostitution.

[11] Section 212(1)(h) of the Criminal Code makes in an offence to exercise “control, direction or influence” over the movements of a person to aid them in engaging them in prostitution. Although count one alleges only an exercise of “control”, I will assume that the Crown is also entitled to rely on evidence of “direction or influence”.

[12] In R. v. Perreault (1996), 1996 CanLII 5641 (QC CA), 113 C.C.C. (3d) 573, the Quebec Court of Appeal considered what is required to prove control, direction or influence. The Court stated at page 575:

The element of control refers to invasive behaviour, to ascendancy which leaves little choice to the person controlled. This therefore includes acts of direction and influence. There is the exercise of direction over the movements of a person when rules or behaviours are imposed. The exercise of direction does not exclude the person being directed from having a certain latitude or margin for initiative. The exercise of influence includes less constricting actions. Any action exercised over a person with a view to aiding, abetting or compelling that person to engage in or carry on prostitution would be considered influence.

[13] In my view, an exercise of control, direction or influence over the movements of a person within the meaning of s. 212(1)(h) requires more than simply operating the controls of a motor vehicle in which a prostitute is riding, even if the driver knows that the person is en route to engage in prostitution. As Perrault makes clear, it requires some involvement in the process leading to the person engaging in the activity, whether by control, direction or influence. I have no doubt that Mr. Drummond knew why C.V. and Ms Galastica were going to the condominium, but there is no evidence, direct or circumstantial, that he had anything to do with their decision or that he ever expressed any opinion about it. In the circumstances, the Crown has failed to prove that he exercised control over the movements of C.V. within the meaning of s. 212(1)(h) and therefore he is found not guilty on this count.

Count Three

[14] With respect to count three, Mr. Drummond is charged that in the material time period he “did live party on the avails of prostitution of C.V., a person under the age of eighteen years, contrary to s. 212(2) of the Criminal Code.”

[15] Apart from the one outcall discussed above, all of the sexual activity in which C.V. engaged occurred at the motel. The evidence of C.V. was that Irma Galastica was present every time she performed sexual acts for money and that on each occasion she gave the money to Ms Galastica. There is no evidence that Mr. Drummond ever received any money from C.V. or that he ever asked her for money. There is no evidence that he was ever present when Ms Galastica received money from C.V.

[16] C.V. testified that in the first week that she was engaged in prostitution, Drummond “may have been in the room once or twice, just sitting on the bed”. At another point, she testified that he may have occasionally slept in the room and that he was ‘around’ at the end of the day. Sometimes when he was in the room, he was using his laptop computer.

[17] On January 25, 2013, officers with the Peel Regional Police went to the room shortly after midnight looking for C.V., who had been reported missing by her father. Three persons were present in the room when the police knocked: C.V., who was passed out on a bed, Ms. Galastica and Mr. Drummond. Four days later, officers with the Toronto Police Service went to the room to apprehend C.V. pursuant to a Form 2 under the Mental Health Act. The only person in the room was C.V. One of the officers looked through the drawers in the room and in one of them he found articles of what appeared to be men’s clothing.

[18] Motel registration documents for the room that was being used in the latter part of C.V.’s foray into prostitution suggest that Ms Galastica had rented the room on January 15. There is no evidence that Drummond had anything to do with that.

[19] In relation to this count, the Crown sought to invoke s. 212(3) of the Criminal Code, which provides that “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”. Because the Crown has particularized C.V. as the person on whose avails Mr. Drummond was living, the triggering of the presumption requires some evidence that he was either habitually in her company or that he was living in a common bawdy house with her. Further, because of the way the count has been particularized, ‘evidence to the contrary’ for the purposes of this case means evidence that is capable of casting doubt on whether Mr. Drummond was living on the avails of C.V.’s prostitution.

[20] Assuming without deciding that there is some evidence that Mr. Drummond was habitually in the company of C.V., such that the presumption might be triggered, I am of the view that there is ‘evidence to the contrary’. That evidence includes C.V.’s testimony that she never gave Mr. Drummond any of the money she earned, that he never asked for any of the money, that apart from driving her to the Eaton Centre on the day she met Ms. Galastica, and driving her to and from the one outcall, he never had any dealings or conversation with her, that he had a personal romantic relationship with Ms. Galastica, and that all of C.V.’s involvement in prostitution was arranged, directed and controlled by Ms Galastica. Taken as a whole, that evidence is capable of casting doubt on whether Mr. Drummond was living on the avails of C.V.’s work as a prostitute.

[21] Because there is evidence to the contrary, the presumption does not apply and the Crown must prove its case in the ordinary way, on the basis of all of the evidence. The only evidence that the Crown was able to point to as an indication that he was living on the avails of anyone’s prostitution was the evidence of his connection to the motel room that was being used as the place of business of C.V. and Galastica. In that regard, the Crown relied on C.V.’s evidence that he tended to be around at the end of the day, that he sometimes slept in the room, and then when there were no clients he might be there to use his laptop computer. The Crown also relied on the evidence that Mr. Drummond was in the room with Ms. Galastica and C.V. on January 25, when the Peel Regional Police visited, and that some men’s clothing was found in one of the drawers in the room on January 29.

[22] Assuming without deciding that Mr. Drummond’s ability to occasionally use the room as a place to sleep or to operate his computer was a benefit, I am far from satisfied that the availability of that benefit was connected to the earnings of C.V. She testified that she spent time with Ms Galastica in two separate time periods. The first time period appears to have been at the beginning of January and the second appears to have been toward the middle or latter part of the month. There is no doubt that C.V. was engaging in prostitution in the first time period but her evidence was equivocal with respect to the second time period: in examination in-chief she said that she was but in cross-examination she said that she was not.

[23] With respect to the first time period, there is no evidence as to who rented the room and no evidence as to who paid for it. With respect to the second period, there are motel registration documents that seem to show that the room was rented by Ms Galastica on January 15. Assuming that Ms Galastica paid for the room, there is no evidence that any of C.V.’s earnings were used for that purpose. If the Crown is to show that by making use of the room Mr. Drummond was living on the avails of C.V.’s prostitution, it must show some connection between her earnings and the availability of the room. Even if it could be said that there was some evidence to support an inference of such a connection, that evidence would fall far short of establishing a connection beyond a reasonable doubt.

C. Disposition

[24] For the foregoing reasons, Mr. Drummond was found not guilty on all three counts in the indictment.

MacDonnell, J.

Released: June 26, 2015