R U L I N G

MONDAY, AUGUST 5, 2015

THE COURT: I am just going to preface this by saying that I have made an order pursuant to Section 486.4(1) regarding the non-publication of anything which would identify the complainant. I have modified the reasons I am about to give to comply with that order.

R U L I N G

Dawson J. (Orally):

Paul Griffiths is charged in count one with procuring C.R. to become a prostitute, contrary to s. 212(1)(d) of the Criminal Code. In count two he is charged with, for the purpose of gain, exercising control, direction or influence over the movements of C.R. in such manner as to show that he was aiding, abetting or compelling C.R. to engage in prostitution, contrary to s.212(1)(h) of the Criminal Code. He has brought an application for directed verdicts of acquittal on both charges at the close of the Crown’s case.

At this stage of the proceedings, I am not entitled to assess the credibility of the prosecution’s evidence. I must assume that Crown witnesses are credible. I am not entitled to weigh or evaluate competing inferences. The well known test that I must apply is whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty: United States of America v. Sheppard, 1976 8 (SCC), [1977] 2 S.C.R. 1067.

As explained in R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154, where there is any admissible evidence before the court, either direct or circumstantial, which, if believed by a reasonable and properly instructed jury would justify a conviction, an application for a direct verdict must be dismissed.

At this stage, I am not entitled to evaluate the evidence the way I will be required to at the end of this judge alone trial. If there is some evidence which meets this test in relation to each of the essential elements of the offence in question, the application will fail. The only weighing I am entitled to do at this stage is with respect to circumstantial evidence. Insofar as circumstantial evidence is involved, I am required to engage in the limited weighing necessary to determine whether the evidence can reasonably support an inference of guilt: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at paras. 22 and 32.

In brief summary, C.R. has testified that at the age of 18 she had moved away from the home of the family member where she had previously been living and rented a room from a friend. She was 18 years old and was working in a grocery store and a warehouse. She wanted to earn more than she was making in order to save money to further her education. She met the accused, who appears to be considerably older, through her friend at a BBQ.

C.R. said she found the accused to be nice and easy to talk to. She shared with him that she had previously been sexually abused. He was supportive of her. She became emotional. They discussed the complainant’s financial situation and her aspirations.

C.R. and the accused met again a number of days later and continued to discuss her circumstances. They discussed how she might make more money. They ended up discussing her becoming a stripper or strip dancer. C.R. candidly said that she did not recall if she or the accused first raised her working as a stripper. They discussed other employment as well. She testified the accused was older and supportive and she took his advice. They agreed she would start stripping. He said they would go around together and he would assist her in trying to get her a job. He had a girlfriend who had worked as a stripper and he knew the business.

Thereafter, the accused drove the complainant to various strip clubs. Eventually she got a job at a large club where the accused’s girlfriend used to work. The accused told the complainant to say she was his girlfriend’s cousin. This assisted in the complainant getting a job at that club.

C.R. testified that the accused and his girlfriend gave her some of the accused’s girlfriend’s bikinis to use as outfits. The accused instructed her as to what was expected of her. He told her to pick out music and to wear “heels” when dancing. He explained how she should dance to the music.

C.R. explained that doing lap dances was part of the work. She had never worked in a strip club and got all her information about how to behave and about what was required of her from the accused. She received no training on how to be a stripper at the club itself. Lap dancing came up in her discussions with the accused a few days after she started dancing at the club. The accused helped her decide upon a stage name and acted as her protection. He had sources of information inside the club from the busboy and the bartender. The accused told C.R. how to handle problems that came up.

The complainant’s description of lap dancing is important. She described how the dances would be performed in VIP rooms in the basement of the club. Lap dances involved her becoming naked and then grinding herself against the groin area of the man paying her for the dance. C.R. testified that the customer may also touch her chest area as this was occurring. She was paid $20 per song to lap dance. The grinding would usually occur during the third song. If not expressly stated by the complainant, the inference is available from her evidence overall that it was the accused who taught her about lap dancing within a few days of her starting at the club.

C.R. also testified that the accused told her she would just spend her money if she kept it, and that if she gave all her money to him he would save it for her. They discussed a minimum savings goal of $10,000, and a goal of minimum daily earnings of $200. She often earned more. Almost all of the money was given to the accused. He would give amounts back to her for rent and other expenses.

The subject of “extras” came up after the complainant had been working at the club for a few weeks. C.R. testified that “extras” included “hand jobs”, “blow jobs” and sexual intercourse for extra money. The subject came up when another girl at the club became upset because the complainant was letting men touch her vaginal area without charging for that. C.R. said she did not understand what she was doing wrong. She discussed the situation with the accused. He said she should have been charging extra for men touching her vaginal area.

C.R. said that later she and the accused talked about whether she should do extras. She said it was her idea to do extras to make more money, but did not know what to charge. The accused told her what to charge. It was a mutual agreement that she would do extras.

C.R. explained that she would then routinely perform hand jobs and have sexual intercourse with customers in the VIP rooms at the club. She did not do blow jobs at the club. She turned all her money over to the accused pursuant to their arrangement. Sometimes the accused would tell her she was slacking off and not making enough money. She would then work more hours dancing and doing extras.

C.R. also testified that she sometimes left the club to engage in sexual activity with customers for payment. This occurred three times. On each of the first two times, she called the accused, told him what the customer wanted and was willing to pay, and obtained his approval. She turned over all the money to the accused.

C.R. said that on most days the accused would drive her to and from the club. On other days his girlfriend would do that. She said she was in constant communication with the accused. Cell phone and text message evidence confirm that there were thousands of text messages and hundreds of telephone calls between C.R. and the accused during the time frame of the indictment. The accused had provided the complainant with the cell phone she used for this purpose. The accused paid that bill. The accused gave the complainant money to buy condoms and other supplies she required.

C.R. and the accused had a falling out in December, 2012. She had plans to visit her family in the United States. A plane ticket and Christmas presents for some of C.R.’s family members were being held by the accused. Around this time, C.R. decided she wanted to stop working as a dancer. The accused did not want her to do that and then claimed that she owed him $8,000.

C.R. did not understand this claim and demanded the money the accused was supposedly saving for her. She did not receive it. There was a dispute. C.R. said she became scared of the accused although he was not violent towards her and he did not threaten overtly with physical harm.

C.R. did not go to visit her family at Christmas. She testified she had no money. A series of text messages and Facebook messages placed in evidence provide confirmation of the monetary dispute between C.R. and the accused, and of the accused’s claim that C.R. owed him money and that she would have to continue working at the club to pay him off.

There is considerably more detail to the evidence. However, this summary is sufficient to address the application for a directed verdict.

I will deal first with the procuring charge in Count 1.

To “procure” in the context of s.212(1) (d) of the Criminal Code means to cause, or to induce or to have a persuasive effect upon the conduct that is alleged, here, prostitution. See R. v. Deutsch (1983), 1983 3484 (ON CA), 5 C.C.C. (3d) 41 (Ont. C.A.), aff’d 1986 21 (SCC), [1986] 2 S.C.R. 2. Coercion is not required. Encouragement, enticement or persuasive efforts are enough: R. v. Bennett (2004), 2004 36124 (ON CA), 184 C.C.C. (3d) 290 (Ont. C.A.); R. v. Barrow (2001), 2001 8550 (ON CA), 155 C.C.C. (3d) 362 (Ont. C.A.); R. v. Burton, 2013 ONSC 2160, at para. 144; R. v. Stephenson, [2013] Q.J. No. 3801, at paras. 147-150.

The accused submits that if there was procuring in this sense it was only to get the complainant to become a stripper. He submits that her work as a stripper did not amount to prostitution. He argues that prostitution did not occur until the complainant started to do “extras”, and submits that the decision to do extras was her own.

He then makes reference to the fact that later on he was encouraging the complainant to go back to work or to continue to work to pay him the money he claimed he was owed. He submits that by then C.R. was already a prostitute by her own choice and that anything he did at that point could not amount to procuring her to become a prostitute because she already was one.

I do not accept these submissions. While I agree that strip dancing, as in taking one’s clothes off to music, does not amount to prostitution, C.R. was doing more than that within a few days of starting at the club. She was doing lap dances which involved her grinding her naked body into the groin area of customers who were paying her extra money for that service. The evidence is capable of supporting the conclusion that the accused was the one who taught C.R. how to do that.

Based on the authorities, this form of physical contact between C.R. and her customers meets the definition of prostitution. R. v. Mara (1996), 1996 1504 (ON CA), 27 O.R. (3d) 643, [1996] O.J. No. 364 (Ont. C.A.) clearly supports this conclusion. See also R. v. Akouros [2006] O.J. No. 285 (S.C.J.).

In Mara the evidence concerning lap dances performed in that case is very similar to what occurred here. At para 32, Dubin C.J.O. held that the conduct of the dancers in that case constituted a form of prostitution and indicated that the basic definition of prostitution is the exchange of sexual services in return for payment. In Mara, some of the dancers were also touching their customers crotches over the customer’s clothing.

However, in Akouros, Dambrot J was dealing with a case where women dressed in see-through lingerie were grinding themselves against their customers. He had no difficulty in concluding on the basis of Mara that such conduct, involving actual physical contact in return for payment, amounted to prostitution.

Assuming without deciding that there would be some force to the accused’s submissions on the right facts, the evidence here does not support the argument. In my view, there is evidence in the record capable of supporting the conclusion that the accused was actively involved in persuading the complainant to engage in prostitution when he assisted her, provided her with outfits and taught her how to lap dance, and do what she started to do at the strip club in short order. This would be sufficient to dismiss the application on count one.

However, given that I cannot weigh the evidence at this point, I conclude there is also other evidence concerning things the accused did which, in combination, could support a conviction for procuring. All of the assistance he provided her, in combination is capable of supporting a conclusion that he was persuading her to do what she did.

Turning to count two, at least on the basis of direction and influence, I conclude there is an abundance of evidence capable of supporting a conviction by a reasonable and properly instructed trier of fact. In R. v. Martinez, [1994] N.J. No 437 (Nfld. S.C.) it was held that an accused exercised direction and influence by telling complainants where to go, transporting them, and by telling them how much to charge.

There is evidence that the accused did all of those things in respect of C.R. when he knew she was doing lap dances and extras. Martinez was cited with approval in R. v. Perreault (1996), 1996 5641 (QC CA), 113 C.C.C. (3d) 573 (Que. C.A.).

In Perreault, at p 575-76 the court held as follows:

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. This is the exercise of direction over the movements of a person when rules of 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 actions 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.

I would apply these definitions here. With respect to control, there is the evidence that the accused claimed that C.R. owed him $8,000 and told her that she would have to keep working.

With respect to direction and influence, there is evidence the accused drove C.R. for interviews, told her how to behave, told her about lap dancing, told her what to charge for extras, was in constant communication with her while she was working, acted as her protection, kept her money and doled money out to her for condoms and other supplies. He also approved of two of the three “out calls” she made to provide sexual services away from the club. All of this aided her in the course of her acting as a prostitute.

The evidence supports the potential conclusion that the accused was doing all of this for financial gain. He took her money and has not returned it to her in accordance with the agreement she testified existed. On the complainant’s evidence, one could conclude that she provided far more money to him than he ever expended on her behalf.

The application for directed verdicts is dismissed.

FORM 2

CERTIFICATE OF TRANSCRIPT

Evidence Act, Subsection 5(2)

I, Ryan Easson, certify that this document is a true and accurate transcription of the recording of, August 5, 2015, in, R. v. Griffiths in the Superior Court of Justice, held at 7755 Hurontario Street, Brampton, Ontario, taken from the Recording(s) 3199_404_20150805_111847__30_DAWSONF which has been certified in Form 1.

(Date) (Ryan Easson)

Court File No. 14-419

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

PAUL GRIFFITHS

R U L I N G

BEFORE THE HONOURABLE JUSTICE DAWSON

on August 5, 2015, at BRAMPTON, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA BY ORDER OF THE HONOURABLE JUSTICE DAWSON, SUPERIOR COURT OF JUSTICE, DATED JULY 28, 2015

APPEARANCES:

H. Gluzman

Counsel for the Crown

M. Mattis

Counsel for Paul Griffiths

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA BY ORDER OF THE HONOURABLE JUSTICE DAWSON, SUPERIOR COURT OF JUSTICE, DATED JULY 28, 2015

RULING PAGE 1.

Transcript Ordered:

August 10, 2015

Transcript Completed:

September 22, 2015

Ordering Party Notified:

September 24, 2015