ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 14-419
DATE: 20151008
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. H. Gluzman, for the Crown
- and -
PAUL GRIFFITHS
Mr. M. Mattis, for Mr. Griffiths
HEARD: July 28, 29, 30, 31, August 4, 5, 6, 2015
REASONS FOR JUDGMENT
Justice F. Dawson
[1] Paul Griffiths is charged in count 1 with procuring C.R. to become a prostitute contrary to s. 212(1)(d) of the Criminal Code. In count 2 he is charged with, for the purpose of gain, exercising control, direction or influence over the movements of C.R. in such a 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.
[2] The Crown’s case was comprised of the evidence of C.R., who gave extensive evidence over the course of three days, an agreed statement of facts, and the evidence of a civilian crime analyst who works for the Peel Regional Police. The evidence of the crime analyst consisted of an analysis of the thousands of text messages and hundreds of phone calls made to and from the accused’s cell phone with a view to demonstrating the frequency and timing of communication between the accused and C.R. during the time frame of the indictment.
[3] A number of exhibits were also filed. Perhaps the most significant of these is a booklet containing the content of electronic messages sent between C.R. and the accused by various means in December 2012 and January 2013. Those messages were tendered by the Crown. They contain several admissions by the accused but also contain a number of exculpatory statements.
[4] The accused did not testify or call any witnesses.
An Overview of the Evidence
[5] C.R. met the accused at a backyard barbecue in the summer of 2012. She was 18 years old. She had just moved out of her Godmother’s home into a rented room. She had finished high school and wanted to attend college. She was working in a warehouse and a grocery store but was not able to earn enough to pursue her studies. Her mother and brother were residing in the United States and she had no other family living nearby.
[6] The accused was about 27 years of age. C.R. spoke to him about her situation and her aspirations. She thought he was nice and that he was easy to talk to. She also confided in him that she had been “raped” by her uncle. The accused was sympathetic. The two agreed to meet again later to talk about C.R.’s situation and how she could make more money.
[7] C.R. and the accused met again a few days to a week later and continued to discuss C.R.’s circumstances. Various means of her earning further income were discussed. They ended up discussing her becoming a strip-dancer or stripper. C.R. testified that she could not recall who brought up the idea. However, they mutually agreed that she would start stripping and that the accused would help her find a job in a strip club. The accused told her his girlfriend was a stripper and that he knew the business. C.R. said she had never worked as a stripper and knew nothing about the business.
[8] The complainant testified that the accused took her to a number of strip clubs. He told her to go to the bar and ask for the manager. The third club they attended was one where the accused’s girlfriend had previously worked under the stage name “Heidi”. The accused told the complainant to say that she was Heidi’s cousin and to also claim to have danced at one of the other clubs they had attended.
[9] The complainant was hired at the third club. Based on C.R.’s evidence and some of the employment forms filed as exhibits, I am satisfied she started work on July 27, 2012.
[10] C.R. said she worked as a freelancer for two weeks. The accused usually drove her to and from work. Once she demonstrated she was reliable she was put on a schedule by the club. This required her to perform stage shows at specified times, for which she was paid $300 to $400 per week by the club. The accused had his girlfriend provide C.R. with a number of bikini outfits to use during her performances.
[11] C.R. was also involved in providing lap dances to club customers. These were performed in small rooms in a “V.I.P.” area downstairs in the club. Dancers charged customers $20 per song. C.R. testified that by the third song she would be naked and would grind her body against the groin area of the customer, who could also fondle her breasts.
[12] C.R. testified that the accused said he would act as her protection. He told her how to dress and what to do while working in the club. He told her she had to select songs to dance to and should speak to the D.J. He told her to look pretty, wear heals and to do her own thing when dancing. He told her to mind her own business, not to talk to the other girls and to watch out for pimps. She said that they spoke about lap dances a few days after she started work. She said the accused also helped her decide on the stage name she would use.
[13] C.R. said she trusted the accused and took his advice. He said that if she kept all the money she would be making she would probably spend it shopping. According to the complainant, they agreed the accused would become her accountant. She would give all her money to him. She testified that he set a goal of her saving $10,000 and added that they “probably” discussed her working at the club for a year to achieve that. They both agreed that putting the money in a bank was not a good idea. They discussed keeping it at the accused’s house. In cross-examination she said that she felt that if she made money in a strip club she could not put it in the bank because the bank might ask where all the money was coming from. She said the accused set a minimum earnings goal for her of $200 per day.
[14] C.R. said that she asked the accused twice during the first few weeks of work about whether he was keeping track of her earnings. On the second occasion they went to his house. He brought a box to her and they counted the money.
[15] At the beginning C.R. said she worked seven days a week. Sometimes she worked double shifts. After a while she went down to five days per week. She was tired. The accused told her she was slacking off and she worked harder so she could make the $200 a day. She said she felt she had to as she was working for him. She felt the accused would be disappointed if she did not do the job she was supposed to. There is no suggestion that the accused ever threatened her or coerced her to work more.
[16] Eventually the subject of “extras” came up. C.R. explained that another dancer got mad at her because she was letting men touch her vaginal area without charging for it. She discussed this with the accused. He told her she should have been charging the customer extra for touching. She said that later she talked to the accused about whether she should do extras. This came up when she was not making enough money. She explained that if many girls were working and there were few customers she could have trouble earning $200 per day.
[17] C.R. testified that it was her idea to do extras. The accused told her she did not have to do them. She wanted to do them to make more money. She said that anything she was going to do she felt she had to discuss with the accused first. He had to know because that was their agreement. He was the one helping her so she felt it should “go through him”. Once she decided she wanted to do extras he told her what to charge. She was to charge $50 to $60 for a “hand job”, $20 to let someone touch her vaginal area and $300 for sexual intercourse. She said she did not do “blow jobs”. She started doing extras after she had been working about two months.
[18] C.R. testified initially that she did not have sex in the club. She said that she left the club on three occasions to have sex with a customer in a hotel. On the first occasion she was to be paid $1,000 to whip a man and have sex with him while acting as a dominatrix. She discussed it with the accused first and he approved. He drove to the hotel to pick her up afterwards and to get the money. She was short $100. The accused was not angry but said she needed to be more careful. She obtained advance approval from the accused on another occasion to have sex with a customer in a hotel for $300. The third time she did not tell the accused. That was towards the end of their relationship. She kept the money.
[19] Towards the end of her examination-in-chief, and well into the second day of her evidence, the complainant changed her testimony. She said that she did routinely have sexual intercourse with customers in the VIP area of the club. She said the accused told her to charge $150 to $200 for sexual intercourse at the club. She also said that while she did not do blow jobs at the club she did do them when she was paid for sex outside the club.
[20] The complainant testified that the accused gave her money to pay her rent. He asked her to live at his house with his girlfriend but she declined. He took her shopping or gave her money to buy clothes, condoms, wipes and other things she needed. He also gave her a BlackBerry cell phone and paid the bill. They kept in constant contact. He would text her or call her to find out how her day or night were going and to ask her about earnings. He would often meet with her after work to drive her home and collect her earnings. It she took a cab home she would turn over her earnings the next day. The evidence of the crime analyst shows C.R. and the accused were in frequent daily contact throughout most of the time frame of the indictment.
[21] C.R. explained that if there were any problems at the club the accused would know about them. She would see him outside the club talking to the busboy and the bartender. Once when she went to a nail salon he told her he knew she was there. He told her he had eyes everywhere. He was never violent towards her and never threatened her with physical harm. She worked hard because she felt he would be disappointed if she did not. He was helping her and she felt she owed that to him.
[22] There was no romantic connection between the complainant and the accused. There was sexual contact between them on only one occasion. The complainant said she had been drinking and the accused asked her for oral sex. She felt pressured because he was begging her to do it. As she did it she started to cry. He apologized and never approached her sexually again. There was a degree of inconsistency in the manner in which the complainant described this incident.
[23] The complainant and the accused were also involved in welfare fraud. At the accused’s suggestion the complainant applied for welfare in August of 2012. She did not disclose the substantial income she was earning as a stripper. The payments received varied from $755 per month down to about $600 per month. The complainant testified that pursuant to their agreement she turned most of this money over to the accused.
[24] The relationship between the complainant and the accused began to deteriorate in December 2012. The complainant planned to visit her family in the United States for Christmas. A plane ticket and gifts, consisting of an iPod and a PS2 video game player, had been purchased and were being held by the accused. The complainant then advised the accused that after she returned from her Christmas visit with her family she wanted to stop dancing.
[25] C.R. testified that the accused reacted by telling her that she owed him $8,000. He said she had to pay that amount to him pursuant to their agreement before she could go on her trip. Crown counsel referred to this as an “exit fee”, although there is no evidence the complainant or the accused every used that term.
[26] It is at this point that the contents of the electronic messages and text messages contained in Exhibit 3 become important. They commence on December 2, 2012. They continue intermittently until January 23, 2013. A reading of these messages confirms that the complainant had told the accused she wanted to stop stripping and that he was claiming that $8,000 was owed to him. In the first texts, the complainant is continuing to report to the accused on the nature of her work day. The complainant testified that she continued to work in December and said that she turned $2,000 over to the accused in bits and pieces. The receipt of some money is acknowledged by the accused who reduced his claim to $5,000. The messages reflect a continuing financial dispute between the complainant and the accused. C.R. testified that the accused warned her that she would never be able to work in any club again if she did not pay him his money. The complainant told the accused she wanted the money he had been saving for her and the gifts for her family. He said he did not care how she made the money to pay him or whether she had to work double shifts to get it.
[27] In these messages the accused acknowledges being aware the complainant is sleeping with men for money, although this is said in the context of his finding out after the fact. She complains that he has come to her house and is harassing her. He confirms he has been to her house but denies harassment. She says she now realizes he took advantage of her for five months and continues to demand the return of her money and the gifts for her family.
[28] In a lengthy message on December 18, 2012 the accused says he has always cared about her as a friend and has always tried to help her and provide her with advice. He acknowledges that she asked him to save her money and says that he paid for whatever she wanted him to and sent money to her mother. He states that he never forced her to do anything that she did not want to do and then found out she was acting as a prostitute, which upset him. He claimed she owed him money for driving her “all over the place”. He also asked her to let him know how much money she thinks he still has, taking into account all the things she asked him to pay for and the money she asked him to send to others.
[29] The complainant responded that the accused was being untruthful. She said she was expecting to receive $3,000 to $4,000 from him. I pause to add that, based on her trial evidence, the accused would have received much more from her than that.
[30] As the messages continue the complainant speaks about whether she will go to the authorities. The accused tells her to go ahead because he has done nothing wrong. He denies pimping her and claims she is trying to blackmail him. She says that if he did not do anything wrong he would not be feeling scared. He again tells her to go ahead and go to the police. He promises to deliver the gifts to her. However, that never happened.
[31] At one point in the messages the complainant mentioned that because the accused sells drugs it would be advisable for him to “stay calm”. At another point she indicated that if he paid her what she has asked for and returned the gifts he would have no problems.
[32] The complainant testified that late in December 2012 she dropped out of sight for a while. She was not working. She could not visit her family as she had no money. She was not dancing but continued to collect welfare.
[33] In approximately February 2013 the complainant testified that she returned to the club and continued to work as she had before. She was freelancing and doing extras. Her relationship with the accused was over. She did not receive the money she believed the accused owed her but did not go to the police about her dispute with the accused.
[34] In May 2013 the complainant said that about $4,000 cash from her earnings was stolen from her rented room. The police were called in relation to that matter. When the police investigated, their knowledge of another occupant of the house caused them to probe further. That led to these allegations coming to light. I have no evidence before me concerning the details of that process.
[35] The complainant continued to collect welfare until September 2013 although she was also working as a stripper. She did not disclose her income to the welfare authorities.
[36] I am advised that in September 2013 the complainant began to attend college and has since completed her chosen course of study.
The Elements of the Offences Charged
[37] I reviewed many of the legal principles related to this topic in my reasons dismissing the defence application for a directed verdict of acquittal. As I indicated there, to “procure” in the context of s. 212(1)(d) of the Criminal Code means to cause, to induce or to have persuasive effect upon the complainant to become a prostitute: 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. Inducement 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.
[38] In R. v. Mara, 1996 1504 (ON CA), [1996] O.J. No. 364, 27 O.R. (3d) 643 (C.A.), Dubin C.J.O. said: “The basic definition of prostitution is the exchange of sexual services in return for payment.” He cited authority to support his conclusion that intercourse was not required. He then held, at para. 32, that the lap dancing in that case, which very closely resembled what the complainant described in this case, “constitutes a form of prostitution”. Mara was followed by Dambrot J. of this court in R. v. Akouros, [2006] O.J. No. 285 (S.C.J.), where he held that similar dances, which involved women in see-through lingerie being paid to grind themselves into men’s genital areas to get them aroused, constituted acts of prostitution. I am bound by Mara and find Akouros persuasive. The lap dances performed by the complainant constitute acts of prostitution.
[39] Based on this definition of prostitution it goes without saying that the “extras” the complainant performed in return for payment also constituted acts of prostitution.
[40] The only issue in relation to count 1 is whether the accused procured the complainant to become a prostitute. I observe that s. 212(1)(d) states that an offence is committed where an accused “procures or attempts to procure” someone to become a prostitute. However, the indictment in this case limits the allegation to actual procuring. I have not been asked to consider convicting the accused of attempting to procure on the basis that attempting to procure is an included offence.
[41] Turning to count 2, as I mentioned when dealing with the application for a directed verdict, I find what was said by the Quebec Court of Appeal in R. v. Perreault (1996), 1996 5641 (QC CA), 113 C.C.C. (3d) 573 at pp. 575-76 to be applicable:
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.
[42] In R. v. Martinez, [1994] N.J. No. 437 (Nfld. S.C.), cited with approval in Perrault, the court held that an accused exercised direction or influence by telling complainants where to go, transporting them, and by telling them how much to charge.
[43] Section 212(1)(h) requires that the accused must have acted “for the purpose of gain”. I would point out that in R. v. K.R.B., 2004 ABCA 307, the Alberta Court of Appeal held that this requirement is quite different from the financial benefit required to be established when the crime charged is living off the avails of prostitution under s. 212(1)(j). Under s. 212(1)(h) it need not be shown that an accused actually received anything, just that he acted for the purpose of gain. I agree with that determination.
The Positions of the Parties
[44] Crown counsel made extensive submissions. It is the Crown’s position that the complainant was a highly vulnerable young woman who was taken advantage of by the accused who persuaded her to become a prostitute and, in essence, who stole her money by converting her earnings to his own use. The Crown submits that the accused controlled, influenced and directed every aspect of the complainants work as a prostitute.
[45] Counsel for the accused submits that this case reduces to a dispute about money. He submits that the complainant was not procured to become a prostitute within any accepted definition of that term. He submits that the complainant is not credible and refers to a lack of detail and to various inconsistencies in the complainant’s evidence, as well as to her involvement in welfare fraud, in support of that submission. Counsel submits that I should be left in a state of reasonable doubt in relation to both counts of the indictment.
Analysis
[46] The accused did not testify or call any evidence. However, a version of events that may be characterized as his side of the story can be gleaned from the electronic messages found in Exhibit 3. In connection with that evidence, I have instructed myself in accordance with R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. Given the contents of the accused’s statements it is the second and third branches of W.(D.) which are most significant. If that evidence, either alone or in conjunction with the other evidence in the case, leaves me in a state of reasonable doubt as to any of the essential elements of an offence charged, I must find the accused not guilty of that offence. Obviously, I may only convict the accused of an offence if I am satisfied beyond a reasonable doubt, on the basis of the evidence I do accept, that the accused is guilty of that offence.
[47] Based on my consideration of all of the evidence, I conclude that I am left in a state of reasonable doubt with respect to the procuring charge in count 1. The accused will be found not guilty of that offence.
[48] However, I conclude I am satisfied beyond a reasonable doubt that the accused exercised at least direction and influence over the complainant in a manner which, viewed objectively, demonstrates that he aided the complainant to engage in prostitution. The accused will be found guilty on count 2.
[49] A number of things in combination lead me to conclude that the Crown has failed to prove the procuring charge beyond a reasonable doubt. They may be boiled down to two main categories of concern. First, I have certain reservations about the credibility and reliability of some of the complainant’s testimony. Second, the content of what she did testify to tends to undermine the foundation for any firm conclusion that the accused persuaded her to become a prostitute. Overall, I am of the view that the complainant did not need any persuading. My reservations about the credibility and reliability of parts of the complainant’s evidence leaves me reluctant and unwilling to draw the inferences necessary to find that procuring, even broadly defined, has been proven.
[50] The complainant testified in her examination-in-chief that she was not sure who brought up the subject of stripping. I refer to stripping in the context of prostitution having regard to my conclusion that the form of lap dancing engaged in here is a form of prostitution. If the accused procured her to do that he would be guilty of the offence charged in count 1.
[51] The complainant’s lack of certainty about who brought up stripping is not definitive, but it is a factor which contributes to my conclusion. The complainant also testified that she thought very carefully about whether to become a stripper. She has not given any clear affirmative evidence that the accused said anything to persuade her to become a prostitute. I have made repeated reference to “persuasion” as that was the terminology emphasized by Crown counsel throughout her submissions. The complainant testified that she could not recall the details of what the accused said during the discussions that took place between them before she made her decision to become a stripper. A certain vagueness or lack of detail was a characteristic of the complainant’s entire testimony. It may be a part of her communication style but after watching and listening to the complainant for days I also developed the view that she was being deliberately vague in order to ensure that she had room to manoeuvre while giving her evidence. This impression built up slowly over the course of her evidence.
[52] The complainant has also been inconsistent in describing how the subject of her becoming a stripper came up. In her trial testimony the complainant denied having previously thought about becoming a stripper before meeting the accused. However, in her preliminary inquiry testimony she clearly said under oath that she had previously thought of stripping, and that she was the one who first suggested it during her conversations with the accused. The complainant’s explanation for this inconsistency is that when she testified at the preliminary inquiry she thought that “prior” meant “at the same time”. I do not accept this explanation. The complainant presented as having good communication skills. She had completed high school at the time and has since completed college. This is a significant inconsistency, in my view.
[53] Turning to the “extras”, which clearly constitute acts of prostitution, the complainant testified that the subject came up when she brought it up after she had a dispute with another dancer. The context for her testimony that the accused said she should have been charging to let men touch her vaginal area was her questioning or discussing with him why the other girl was upset. The complainant very clearly testified that she was the one who decided to do extras. She testified the accused told her she did not have to do them. That in itself is not determinative, but it is a significant piece of evidence.
[54] I also point out that the complainant was quite able to say no to things suggested by the accused. For example, when he asked her to live at his house with his girlfriend she declined. The complainant presented in her testimony as reasonably self-assured and quite capable of making her own decisions. I accept that she discussed doing extras with the accused and her testimony that he told her what to charge. I am satisfied that he assisted her. But I have a reasonable doubt about whether he procured her to do extras. I am not able to say that the accused persuaded her, based on my consideration of the evidence as a whole.
[55] My concerns about the credibility and reliability of the complainant’s evidence are also impacted by the fact that for the better part of two days of testimony she maintained that she never had sexual intercourse with men in the club. It was only when Crown counsel went over certain parts of her evidence repeatedly that she finally declared that she had to tell the truth – that she did have sex with men in the club. She then testified that was a frequent, perhaps even daily, occurrence. Her explanation for not telling the truth initially was that she was too embarrassed to tell the truth. Given the graphic nature of much of the rest of the complainant’s testimony I find this explanation difficult to accept.
[56] I also note that the complainant seemed to have real difficulty explaining the nature and details of her financial arrangement with the accused in any way which made sense. She spoke of a plan to save $10,000 over the course of perhaps one year. However, it is clear that the complainant was earning large sums of money. On one set of conservative calculations made by Crown counsel based on the complainant’s account of how many lap dances and extras she was performing, the complainant would have turned more than $125,000 over to the accused. However, when asked in cross-examination how much she felt the accused owed her she said she felt it was around $10,000. Yet in her statement to the police, dated May 13, 2013, she said the accused probably owed her over $30,000. C.R.’s evidence about the financial arrangements between herself and the accused is irreconcilable. I am left with the impression that I am not getting the whole story. Whatever the reason for that, it leaves me reluctant to accept all aspects of the complainant’s evidence or to conclude that she is as vulnerable as Crown counsel characterizes her to be.
[57] Having said that, I do find that the complainant was taken advantage of by