ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-A12648
DATE: 2015/12/18
PUBLICATION BAN IN EFFECT UNDER S. 486.4(1)
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R. R. S.
Accused
T. Dobec, for the Crown
J. Harbic, for the Accused
HEARD: September 21-25, 2015
REASONS FOR JUDGMENT
Aitken J.
Nature of the Charges
[1] R. S. stands charged with nine counts relating to human trafficking, living off the avails of prostitution of another person, unlawful confinement, assaults, uttering threats and breach of an undertaking.
[2] The complainant is A-M. C., a 21-year old woman who worked as an exotic dancer and escort in the Ottawa, Toronto, London, and Niagara Falls areas when she was associated with Mr. S. during the summer of 2013.
Evidence of Ms. C.
[3] Ms. C. started working in the sex trade business early in 2012, when she was 18. For her escort work, she and a friend placed ads on the Internet. Ms. C. would see her clients at Ottawa hotels. By the summer of 2012, Ms. C. had a boyfriend, “Prince”, who ran an escort business. In January 2013, Ms. C. was arrested in Quebec in an undercover operation. The police were not interested in pursuing charges against her; they were interested in Prince and wanted Ms. C. to testify against him. She refused. From January to June, 2013, Ms. C. did not do escort or dancing work. She lived with her sister, was babysitting her niece, and had little money.
[4] Early in May, 2013, Ms. C. met Mr. S. as she was leaving the Rideau Centre. She introduced herself as “N1.”. Mr. S. called himself “R.”. Mr. S. told her that she was beautiful and invited her to come to his friend’s home. She refused, because she had just met him. The two exchanged telephone numbers and, after communicating for a couple of weeks, they got together and quickly became intimate. Ms. C. became pregnant, and on June 5, 2013, she had an abortion. Ms. C. described how she had fallen in love with Mr. S.
[5] Ms. C. accompanied Mr. S. to the condominium apartment of his friend, L. F., who was known as “N2.”. Ms. C. observed other women at the apartment who were working as escorts for Mr. F., both during the day and at night. She remembered N3., E., and S. as the names of some of those escorts.
[6] Initially, Mr. S. treated Ms. C. well. He gave her the impression that he, like his friend Mr. F., was wealthy, and that he could afford to buy her nice things. After about a week, Mr. S. brought up the issue of Ms. C. doing escort work so that they could buy their own condo and a car. Ms. C. was willing to do this, as she had done it in the past. Mr. S. led her to believe that she would earn more money working with him and she would be safe.
[7] Mr. S. took photographs of Ms. C., scantily-clad, and Mr. F. posted them on “backpage”, a website where escorts advertised their services. The idea was for clients to come to Mr. F.’s apartment. Ms. C. would service them in one room while Mr. S., and Mr. F., if he was there, would wait in another room. Initially, Mr. F. used his credit card to pay for the ads, and the ads directed potential clients to Mr. F.’s cell phone, which Ms. C. would answer.
[8] Ms. C. estimated that she serviced 30 to 40 clients in Mr. F.’s apartment prior to her and Mr. S. going to Toronto. She charged $140 for half an hour and $220 for an hour. The clients would pay in cash.
[9] Initially, Mr. S. kept 60% of the proceeds and let Ms. C. keep 40%. After only a few days, however, Mr. S. told Ms. C. that he would be keeping 100% of the proceeds because, otherwise, Ms. C. would spend it and they would not be able to get their own condo. Mr. S. doled out very little money for Ms. C.’s use. All she got were a few outfits and shoes, aside from the cell phone which Mr. S. had purchased for her in May. Quite quickly, Mr. S.’s behavior turned nasty. He told Ms. C. that she “owed him” and that she had to do as he said, or else she would be beaten. According to Ms. C., she was beaten repeatedly – usually because she had not earned at least $800 a day from her escort work. The most money she ever earned in a day was $1,100-1,200. The least was $200-300.
[10] Ms. C. recounted how, on Canada Day, 2013, Mr. S. had wanted photographs taken of her, but she was not feeling well and wanted no photographs taken. Her evidence was that Mr. S. had dragged her back into the room, spat on her, and beaten her around the face, arms, and neck, leaving scratch marks and bruises. Then he pushed her on the bed and started to choke her. According to Ms. C., other girls started to scream. They got Mr. F., who told Mr. S. to stop because he was frightening the other escorts. During this assault, Mr. S. called Ms. C. a whore, said she was disgusting, and complained that he should have never brought her to Mr. F.’s apartment.
[11] Ms. C. recalled that, on her friend’s birthday, she had been beaten up by Mr. S. when he discovered that she was hiding money from him.
[12] After approximately a month, Mr. S. proposed that Ms. C. start stripping because there was more money in that work. Ms. C. did not want to do that in Ottawa, where she had family. Mr. S. proposed that they go to Toronto, where he had family. The two took a bus to Toronto and Mr. S. paid for the tickets. Mr. S.’s aunt picked the couple up at the bus station, took them to Motel 6, and used her credit card to secure the room. The couple stayed at Motel 6 for the nights of July 19 to July 28, 2013. On July 29, 30, the couple was in London, Ontario, first at the Holiday Inn and then at a Travel Lodge hotel. On the nights of July 31 to August 11, 2013, the couple had a room at the Ramada Plaza at the Toronto airport, and a room at the Airport Best Western Plus on August 12.
[13] When in Toronto, Ms. C. worked virtually daily at the Locomotion strip club under the name of A. She paid the club $30 a day for permission to dance at the club and do extras for clients in the back room. Those extras included a “hand job” ($120-$140), a “blow job” ($300), or intercourse ($400-$500). If she did not earn at least $800 a day, she got into trouble with Mr. S.
[14] Ms. C. described an incident in London when Mr. S. and Ms. C. got into a fight that resulted in Mr. S. taking Ms. C.’s phone, Ms. C. trying to retrieve it, Mr. S. backhanding her, and his dragging her on the carpet, throwing her on the bed, choking her, and threatening to kill her. Ms. C. testified that she had suffered scratches to her nose during this altercation. The phone rang and there was knocking on the door. According to Ms. C., the cleaning women heard the racket. Mr. S. left with Ms. C.’s phone and other possessions. Ms. C. ran after him. The front desk advised the couple that they would have to leave or the hotel would call the police. Mr. S. said that he was leaving Ms. C., and went next door to see Mr. F., who was also in London with an escort. Ms. C. collected her things and left, with the intention of going back to Ottawa as soon as she could make some money for bus fare. Eventually, Mr. S. relented, and the couple reconciled.
[15] One night, when the couple was staying at the Ramada in Toronto, they got into a fight because Mr. S. had taken from Ms. C.’s wallet the money she had earned at the Locomotion. Ms. C. was angry and called Mr. S. various names. According to Ms. C., Mr. S. dragged her along the carpet by her hair, beat her up, and called her derogatory names. She was screaming loudly. She believes someone called the room or knocked on the door. Mr. S. left and came back a short while later, apologizing for what he had done, but still blaming her for making him do it. Ms. C. said that this was a frequent occurrence. Mr. S. would beat her up, later apologize for what he had done, and then be nice to her for a day or two.
[16] Ms. C. described how, at some point, she and Mr. S. had gone to Niagara Falls in the hope that she would be able to make more money working there as an exotic dancer. Once in Niagara Falls, they learned that Ms. C. needed a licence to work as a dancer. To get the licence, she needed two pieces of identification. The health card, SIN card, and passport she had with her did not suffice. Mr. S. was angry with her. According to Ms. C., Mr. S. again physically assaulted her, grabbing her, throwing her on the bed, choking her, and slapping her. She tried to escape out the door, but he dragged her back. She threatened to call the police, and he said she knew what they did to snitches. Ms. C. said that the scratches on her nose opened up again. Mr. S. sent Ms. C. back to Ottawa on the bus in order to get her birth certificate from her mother. In examination in chief, Ms. C. said that Mr. S. would not let her take her clothes, suitcase, SIN card or passport – only her health card. As well, he gave her $300 cash for the bus and a room in Ottawa. Under cross-examination, Ms. C. testified that she had her passport and wallet with her when she returned to Ottawa after having been in Niagara Falls, but not her SIN card.
[17] Ms. C.’s plans were to stay in Ottawa and not return to Mr. S. When she got to Ottawa, likely on August 13 or 14, she stayed at the Econolodge on Rideau Street. She went to her mother’s home the following day and collected her birth certificate. Her mother asked her to stay, but Ms. C.’s evidence was that she and her mother did not get along, and she was not sure if her mother was serious. Ms. C. did not feel that she could go back to her sister’s, because she and her sister had not parted on good terms. Her sister had told her that, if she returned to Mr. S., not to contact her again. Ms. C. moved to the Extended Stay on Cooper Street on August 15. Meanwhile, Mr. S. had returned to Ottawa and begged her to stay with him. Again, she agreed. The couple headed back to Toronto with Mr. F. on August 16. Ms. C. resumed her work as an escort and also as a dancer at Locomotion. According to Ms. C., one day, when she wanted a day off, Mr. S. became angry and again assaulted her. He slapped her, choked her, and spat at her. Mr. S. took the money she earned.
[18] On August 19, the couple returned to Ottawa with Mr. F. They stayed at the Embassy Hotel and Suites on August 19, 20. Ms. C. was exhausted and sick and did not want to work. Mr. S. again became angry and grabbed her by the hair, threw her on the floor and slapped her. A man knocked on the door and told the couple they would have to leave. Ms. C. went and stayed with a friend for a couple of days. Mr. S. persuaded her to meet him at Mr. F.’s apartment. But when she got there, Mr. S. again beat her up because she had not brought any of her outfits, and Mr. S. had wanted to take pictures of her. Mr. F. intervened. He gave Ms. C. money to get her outfits from her friend’s home. Ms. C. did that. Mr. S. and Ms. C. argued for hours and, finally, Mr. S. left with another woman. The next day, Mr. S. was repentant. He claimed to love Ms. C. and to want her to be safe.
[19] Mr. S. and Ms. C. went to the home of Mr. S.’s father. While Ms. C. slept and rested, Mr. S. was out most of the time. On August 28, the couple moved to the Radisson, where they stayed until September 5.
[20] When first at the Radisson, Ms. C. escorted to earn money. Then Mr. S. forced her to go to Barbarella’s to dance and do extras. Ms. C. was sick and very thin at this time, and did not want to go on stage. A man at the strip club took pity on Ms. C. and gave her $300. When Ms. C. returned to the room, Mr. S. confiscated the money. He told her she had better earn $800 that day. Ms. C. posted photographs on-line and had some clients that afternoon. That evening, Mr. S. called her from a number that Ms. C. did not recognize. She traced the number to another, young, escort, D., whom she had recently met at Mr. F.’s apartment. She also recognized the Lord Elgin Hotel as the locale where the photographs of that escort had been taken. Ms. C. called the Lord Elgin and asked for the room of R. S. D. answered. Ms. C. asked her if she was now being pimped by “her man”. Shortly after this call, Mr. S. called Ms. C. saying that D. had returned the phone he had given her and did not want to have anything to do with him. Mr. S. was very angry.
[21] According to Ms. C., Mr. S. arrived at the Radisson Hotel and started to beat her up, grabbing her by her hair, throwing her around, dragging her on the carpet, choking her, kicking her and spitting on her. Ms. C. fought back. According to Ms. C., Mr. S. put her against the headboard and put a knife to her neck, threatening to dump her in the Rideau canal if she went to the police. Mr. S. left. Ms. C. ran after him because he had taken her money and her phone. Mr. S. pushed her into bags of garbage on the street and told her that that was where she belonged, that no one loved her. Eventually, the two of them returned to the hotel. The housekeeper said that the hotel would call the police if the couple did not leave. Ms. C. gathered her things and took a taxi to her mother’s, using $20 that Mr. S. had given her. Two days later, she gave a report to the police.
[22] Under cross-examination, Ms. C. acknowledged that in the frequent fights that she and Mr. S. had, she would yell at him and call him names. She claimed to have fought back, but only in defence. On the last night the couple was together and had the fight that resulted in Ms. C. deciding to go to the police, Ms. C. had called Mr. S. a “poor little broke nigger” after he had beaten her and taken her money and phone. She had spat at him, after he had repeatedly spat at her, and she had punched him in the shoulder. Ms. C.’s evidence was that, at various times, she had bruises on her face and leg as a result of the assaults that had occurred in July, August, and September. She claimed never to have gone to a hospital or to the police for fear of what Mr. S. would do to her.
[23] Ms. C. stated that she had finally gone to the police in September, 2013, after the last fight at the Radisson Hotel, because she was really angry. Mr. S. had forced her to work that day, even though she was exhausted. He had beaten her up and taken her money and her cell phone. And he was using the money she earned to rent a hotel room with another escort.
Evidence of Other Witnesses
[24] The evidence of Ms. C.’s mother, S. V., was of limited use. First, I conclude that she was mixed up as to the timing of events. Her evidence would fit with that of Ms. C. if, when she talked of events that happened in 2013, she was actually referring to events in 2012, and if, when she talked of events in 2014, she was actually referring to 2013 events. Second, Ms. V. had a very limited memory as to any events concerning her daughter.
[25] That being said, Ms. V. did recall receiving approximately three emergency calls from Ms. C., during which she spoke of needing help, but the phone went dead before Ms. C. was able to provide her coordinates. Ms. V. recalled Ms. C. coming to her home to collect her birth certificate, and seeming nervous. Finally, Ms. V. remembered the call, which I find to have been in September 2013, after which Ms. C. moved home. At that time, Ms. V. saw choke marks on Ms. C.’s neck that were light red and yellow and a bluish bruise on Ms. C.’s leg.
[26] N. H., another escort who worked for Mr. F. during the summer of 2013 under the name “E.”, recalled meeting Mr. S. three times and Ms. C. two times at Mr. F.’s apartment. The first time, Ms. H. met Mr. S., nothing eventful happened; she simply realized that Mr. S. was a friend of Mr. F. The second time Ms. H. saw Mr. S., he and Ms. C. were at Mr. F.’s apartment. Ms. C. seemed upset, but Ms. H. did not witness any physical violence between the two. On that occasion, Ms. H. observed that, after Ms. C. had serviced a customer, she came out of the room and gave money to Mr. S.
[27] The third time Ms. H. saw Mr. S., he came into Mr. F.’s apartment with Ms. C., and it was obvious that they had been fighting. Mr. F. was accusing Ms. C. of stealing his marijuana, he told her to leave, Ms. C. was denying having taken anything of his, and she was begging him not to leave her. The verbal argument continued for a period of time. Then Mr. S. lost his patience and started to slap Ms. C. She ended up crying on the floor, and begging Mr. S. not to leave her. Mr. S. continued to hit her and he gave her one kick. He grabbed her phone and threw it out the 10th floor window. Ms. C. and another escort went downstairs and retrieved the phone. When Ms. C. came back into the apartment, she was still crying, but Mr. S. had calmed down. According to Ms. H., Mr. F. had tried to intervene on a couple of occasions to stop the fight.
[28] I find that Ms. H. was not the high school friend, who also happened to be named N., whom Ms. C. had done escort work with prior to meeting Mr. S. I find that Ms. H. had no previous or continuing relationship with Ms. C. I consider her evidence credible and reliable.
[29] Officer Serge Berubé testified that he or other officers contacted all of the hotels mentioned by Ms. C. and was able to confirm bookings in all hotels (except any in Niagara Falls and one in London) that were consistent with the evidence of Ms. C. The hotels were asked for any video tapes they would have of the front entrance or lobby for the relevant dates, but either the hotels did not make video tapes or else the tapes had already been destroyed. The two exceptions were the Extended Stay and the Embassy Hotel and Suites. With the Extended Stay, after the police had verified that a video tape existed, the police failed to notify the hotel to keep the video and it was subsequently destroyed. With the Embassy, the police retrieved a video, had difficulty viewing it, and failed to get technical assistance so that the video could be viewed.
[30] Mr. S.’s sister, M. S., and his father, L. S., testified that, in the summer of 2013, R. S. had brought Ms. C. to his father’s home on a few occasions. The couple had slept over at the home on at least one night, and on other days, around the same time, Ms. C. had spent much of the day at the S. home while R. S. had been out. It appeared to Ms. S. that the couple were boyfriend/girlfriend. She thought that the time Ms. C. would have been at the S. home was close to the beginning of the summer. The evidence of Ms. S. and Mr. S. Sr. was of minimal assistance.
Credibility of Ms. C.
[31] Ms. C. was not challenged under cross-examination in regard to the general overview of events, how she earned money as an escort and a dancer, the fact that she gave money to Mr. S., and the fact that she and Mr. S. fought.
[32] There are aspects of Ms. C.’s testimony, however, that Defence counsel argues should leave me with significant concerns about Ms. C.’s credibility and with a reasonable doubt as to whether the Crown has proven each offence.
[33] First, Ms. C.’s testimony was to the effect that Mr. S. assaulted her frequently throughout the summer of 2013. She described every assault as including her being dragged by the hair, being slapped or punched around the head and face, her being thrown on the bed, her being choked, and her being spat on. Her description of these assaults sounded more like a mantra than a recollection of what actually happened on each occasion. Although it would be unrealistic to expect someone who was repeatedly assaulted over a number of months to clearly recall the exact nature of each assault, when asked to do so two years later, the fact that Ms. C. used virtually the same language to describe each assault raises a question as to how many occurred and whether they were all of the nature described by Ms. C.. This is particularly so when Ms. C. never consulted a doctor nor visited a hospital after any of the assaults.
[34] Secondly, Ms. C. explained that she had not gone to the police before September 6, 2013 because she was afraid of what Mr. S. would do. She considered him dangerous, and took to heart his threats to harm her, and members of her family, if she told anyone about his behaviour with her. There are many reasons why a prostitute may decide not to report her pimp and her pimp’s violence and abuse to the police. Those include lack of confidence, fear of the pimp, dependency on the pimp, fear of what life might be like without the pimp, distrust of the police, and lack of a network of support to assist the prostitute in changing her lifestyle. I accept Ms. C.’s evidence that a number of factors played a role in her decision not to seek help prior to September 6. That being said, some of the evidence raises a doubt as to whether Ms. C.’s fear of Mr. S. was as constant or overpowering, as she suggested in her testimony.
[35] When Mr. S. and Ms. C. were arguing, the evidence suggests that she gave as good as she received in terms of name-calling and slurs. She acknowledged punching him in the shoulder on one occasion, hitting him on another occasion, and trying to hit him with a coffee maker during a third incident. On occasions when Mr. S. was leaving Ms. C., after having taken her cell phone and her money, she ran after him in an effort to get her items back or to persuade him not to leave her. That is not suggestive of her being in constant fear of him.
[36] There is the evidence of Ms. H. to the effect that, during the altercation between Mr. S. and Ms. C. that she witnessed at Mr. F.’s apartment, initially Mr. S. was telling Ms. C. to leave and she kept arguing with him and begging him not to make her go.
[37] The evidence was that, during the summer of 2013, Ms. C. weighed about 100 pounds. She is approximately 5 feet 5 inches in height. Mr. S. is between 5 feet 10 inches and 6 feet and, at that time, weighed approximately 200 pounds. The level and frequency of the violence described by Ms. C. would seem inconsistent with the absence of any marks or other signs on her body. It is uncontroverted that Ms. C. worked as a dancer/stripper on almost every day from July 21 to August 27. I infer from this that Ms. C.’s physical injuries were not so severe so as to prevent her from being a desirable stripper and escort. That being said, I note that many abusers know how to hit and hurt their victims so that marks are not apparent.
[38] Third, the Crown did not tender the evidence of any hotel workers as to what they observed of any physical altercations between Mr. S. and Ms. C., nor were any video tapes produced to corroborate Ms. C.’s version of events. In noting this, I am not suggesting that corroboration is a legal requirement before a conviction can be entered.
[39] Fourth, Ms. C. was adamant that jealousy played no role in her decision to go to the police after the fight with Mr. S. on September 5, but she did admit that she was very angry with him. She included in her reasons to be angry the fact that he was using her money to pay for a hotel room for another escort. As well, when Ms. C. called the Lord Elgin to track down Mr. S., and the other escort answered from Mr. S.’s room, Ms. C. immediately accused her of working for “her man”. In her initial written statement to the police, Ms. C. started her account by saying that her boyfriend was cheating on her. This use of language suggests a certain possessiveness that Ms. C. felt toward Mr. S. as her boyfriend, despite his violence towards her and his taking her money.
[40] Fifth, under cross-examination, Ms. C. had to acknowledge that some of the testimony she provided during the trial conflicted with earlier statements she had made to the police or earlier testimony at the preliminary hearing. When confronted with these differences or with anomalies in the evidence, Ms. C. seemed quick to come up with an excuse – not all of which had the ring of truth.
[41] These observations lead me to conclude that Ms. C. exaggerated her evidence in a number of respects to increase the perception that she was a victim throughout her interactions with Mr. S. and that he controlled all of her behaviour over this entire period through violence and the threat of violence. That being said, each individual count needs to be considered. The obligation on the Crown is to prove each essential element of an offence beyond a reasonable doubt. The Crown need not prove each item of evidence or testimony beyond a reasonable doubt. Despite the likelihood of some exaggeration in Ms. C.’s evidence, and the presence of some inconsistencies, there is much of Ms. C.’s evidence which I do accept.
General Legal Principles
[42] Mr. S. is presumed to be innocent of all charges until the Crown has proven his guilt of a charge beyond a reasonable doubt. In order to prove Mr. S.’s guilt in regard to any particular charge, the Crown must prove beyond a reasonable doubt each essential element of that count – nothing more and nothing less.
Count One: Human Trafficking
[43] Mr. S. is charged with exercising control over the movements of Ms. C. for the purpose of exploiting or facilitating the exploitation of her, contrary to s. 279.01(1) of the Criminal Code, R.S.C. 1985, c. C-46.
[44] The essential elements of this offence are that (1) Mr. S. was exercising control over the movements of Ms. C., and (2) the purpose for which he was exercising control over her was to exploit her or facilitate her exploitation. Section s. 279.04 elaborates on the meaning of exploitation for the purpose of s. 279.01:
279.04(1) For the purposes of sections 279.01 to 279.03, a person exploits another person if they 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.
(2) 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.
[45] The relevant provision in s. 279.04(2) is (a) involving the use or threat to use force and other forms of coercion.
[46] I find that, initially, Ms. C. was willing to be an escort and to be pimped by Mr. S. so that the two of them could get ahead financially and be able to rent their own condo and perhaps get a car. In 2012, Ms. C. had worked as an escort on her own or with a friend. She had then been in a relationship with Prince in which, not only was he her boyfriend, but also he was her pimp. Her relationship with Mr. S. started out very similarly. Quite early in the relationship with Mr. S., however, he started to exercise control over Ms. C. using three specific tactics.
[47] First, Mr. S. assaulted Ms. C. or threatened to hurt her if she did not do as he said. Secondly, he would then apologize and beg her to forgive him, while at the same time planting in her head the notion that she had made him react as he did. This pattern is what I would call “crazy-making” behaviour. A person in Ms. C.’s position would not know whether to love or fear Mr. S., and would wonder if she had done something to cause his aggressiveness. With her not having a close relationship with her family, Ms. C. was an easy target to be emotionally manipulated. Third, Mr. S. took the money that Ms. C. earned as a dancer and escort and doled little amounts out to her as he deemed fit, so as to make her financially dependent on him. Mr. S. was able to enforce this rule against an unwilling Ms. C. due to his superior physical power and her fear of what he would do to her if she refused to hand over the money.
[48] Considering all of the evidence, I find that, although Ms. C. was not under Mr. S.’s complete control every moment from June through to September 2013, there were numerous occasions when he did exercise control over her and direct her actions. I accept Ms. C.’s evidence that Mr. S. set a quota of what he expected Ms. C. to earn in a day and, if she did not earn that amount, she was beaten or told to earn more if she did not want to be beaten. There were occasions when Ms. C. was exhausted or sick when Mr. S. insisted that she continue to work as a dancer or escort. I have no doubt that, on those occasions, Mr. S. was effectively controlling what Ms. C. did, and he was doing so to get her to continue working as an escort or dancer so that she would bring home more money for him to take. Ms. S. was compliant because she feared being beaten. I find Mr. S. guilty of count one.
Count Two: Living off the Avails
[49] Section 212(1)(j) has been ruled unconstitutional. This count is stayed.
Count Three: Receipt of a Material Benefit from Trafficking
[50] Under s. 279.02(1), everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under s. 279.01(1), is guilty of an indictable offence. I have already found Mr. S. guilty of trafficking through exercising control over the movements of Ms. C. for the purpose of exploiting her, as was particularized in the indictment. There are other ways, however, in which the offence of human trafficking can be established. One is by directing or influencing the movements of a person for the purpose of exploiting her. Another is to transport a person for the same purpose. A third is to harbour a person for the purpose of exploiting her.
[51] In regard to directing or influencing Ms. C.’s movements for the purpose of exploiting her, Mr. S. directed Ms. C. as to when she should work as an escort and when she should work as a dancer. He decided, or at the very least, influenced in which city Ms. C. would work. He set the daily quota for the money she needed to earn. He doled out money to her as he saw fit and in a fashion to maximize the return to him from her work.
[52] In regard to transport, Mr. S. paid for Ms. C.’s bus fare to get from city to city, arranged for the two of them to travel to and from Toronto with Mr. F., and asked his family members to drive them to locales where Ms. C. would then engage in escorting or dancing. Mr. S. borrowed Mr. F.’s car to take Ms. C. to outcalls. In regard to harbouring Ms. C., Mr. S. arranged to use Mr. F.’s apartment for Ms. C.’s escort work. Mr. S. had Mr. F. use his credit card to make hotel reservations for Mr. S. and Ms. C. Mr. S. had family members use their credit cards to make hotel reservations. Mr. S. doled out money to Ms. C. to pay for hotel rooms.
[53] The reason Mr. S. made all of these arrangements was so that Ms. C. would make money for him working as an escort and dancer, and he used the threat of her being beaten, and actual beatings, to have her work in this capacity even at times when she did not want to. Regardless of whether she was sick or tired, she had to keep working and try to reach a daily minimum of $800, or experience Mr. S.’s wrath. He facilitated this work by providing transportation and accommodation.
[54] Having found that Mr. S. is guilty of trafficking, the question arises as to whether Mr. S. knew that the money he received from Ms. C. resulted from his exercising control, direction or influence over her movements, or his harbouring or transporting her, for the purpose of exploiting her as an escort and dancer. I have no doubt that Mr. S. was fully aware that the reason why Ms. C. worked as much as she did as an escort and dancer, in the locales where she did, and was handing over to him all of her earnings, was, at least in significant part, because she feared being beaten if she did not live up to his expectations. Mr. S. is guilty of this offence.
Count Four: Withholding Documents to Facilitate Trafficking
[55] Under s. 279.03, everyone who, for the purpose of committing or facilitating the offence of human trafficking, withholds any document that establishes or purports to establish another person’s identity is guilty of an indictable offence. Ms. C.’s evidence, both during examination-in-chief and cross-examination, was that Mr. S. had withheld her SIN card and had insisted that she return to Ottawa to get her birth certificate so that she could get a licence to be an exotic dancer in Niagara Falls. In examination-in-chief, Ms. C. stated that she was sent back to Ottawa with only her health card and a small amount of cash for transportation and a hotel room. On cross-examination, she said that she had her wallet and passport with her, but not her SIN card. It was never put to Ms. C. that this withholding of her SIN card by Mr. S. had never happened. Although, on the evidence, there was a lack of clarity as to the date Mr. S. and Ms. C. went to Niagara Falls, whether they went there from Toronto or from London, how they got there, which hotel they stayed at, and whether they left Niagara Falls together or independently, I am satisfied that Mr. S. did withhold Ms. C.’s SIN card as a form of control over her to ensure that she returned to him from Ottawa with her birth certificate and continued to earn money for him through dancing and escorting.
Count Five: Unlawful Confinement
[56] Mr. S. is charged under s. 279(2) with unlawful confinement of Ms. C. The Crown acknowledges that there is insufficient evidence on this count to support a conviction. Mr. S. is found not guilty of unlawful confinement.
Count Six: Assault
[57] It is clear from what I have already said that I find Mr. S. guilty of assault. On more than one occasion, Mr. S. intentionally applied force to Ms. C., he did so without her consent, and he knew that she was not consenting. Ms. H. observed one such incident. I find that there were more, the most serious occurring in the Radisson Hotel in Ottawa on the night of September 5. The injuries Ms. C. sustained on that occasion can be seen in the photo book entered as Exhibit 1. Ms. V. also observed injuries on Ms. C., and I find that her observation occurred after Ms. C. had sought her help following the Radisson Hotel incident.
Count Seven: Assault with a Weapon
[58] I have already found that Mr. S. assaulted Ms. C. at the Radisson Hotel on September 5. The question is whether the Crown has proven beyond a reasonable doubt that he used a knife to threaten Ms. C. during that assault. Again, Ms. C. was not specifically challenged on this aspect of her evidence. Ms. C. did not allege that Mr. S. had ever used a weapon against her previously. Her allegation that Mr. S. used a knife on September 5 gains some credence from the following circumstances. Mr. S. was extremely angry with Ms. C. on September 5. She had interfered with a source of ready money for him from a second escort. Ms. C. had called Mr. S. some very derogatory names. Mr. S. was as aggressive with Ms. C. as he had ever been. Ms. C. was very angry as well and tried to fight back – at one point trying to hit him with a coffee maker. It was only after this attempt, which I find to have been a defensive manoeuvre, that Mr. S. allegedly threatened Ms. C. with the knife. There were marks on Ms. C.’s neck consistent with something long having been put against it.
[59] That being said, considering Ms. C.’s tendency at times to exaggerate, I am not convinced beyond a reasonable doubt that Mr. S. used a knife during the assault at the Radisson Hotel. Mr. S. is found not guilty of this count.
Count Eight: Uttering Death Threat
[60] Did Mr. S. knowingly make a threat to cause death to Ms. C., contrary to s. 264(1)? Ms. C.’s evidence was that, when Mr. S. was holding her on the bed with a knife to her throat, he told her that, if she ever went to the police, he would put her in a body bag, would dump her in the canal, and no one would ever find her. Although I am not satisfied beyond a reasonable doubt that Mr. S. threatened Ms. C. with a knife, I am satisfied beyond a reasonable doubt that he uttered the words alleged and that a reasonable person would interpret those words as being a threat to cause death. I am satisfied beyond a reasonable doubt that Mr. S. made this threat knowingly, with the intention of intimidating Ms. C. into not reporting his assaults to the police.
Count Nine: Breach of Undertaking
[61] At the time of the offences referred to above, Mr. S. was out on bail pursuant to an undertaking and promise to appear signed December 18, 2012, the key provision of which was to keep the peace and be of good behaviour. Clearly, with the findings I have just made, Mr. S. breached that undertaking and is guilty as charged under s. 145(5.1) of the Code.
Disposition
[62] In summary, I find Mr. S. guilty of counts 1, 3, 4, 6, 8, and 9. I find him not guilty of counts 5 and 7. Count 2 is stayed.
Aitken J.
Released: December 18, 2015
COURT FILE NO.: 13-A12648
DATE: 2015/12/18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
R. R. S.
REASONS FOR JUDGMENT
Aitken J.
Released: December 18, 2015