Her Majesty the Queen v. Fadi Esho and Yousif Jajou, 2017 ONSC 6152

CITATION: R. v. ESHO and JAJOU, 2017 ONSC 6152

DATE: 20171020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

FADI ESHO and YOUSIF JAJOU

Christopher Kalantzis for the Crown

John Christie for Fadi Esho

Victoria Tatsis-Yeh for Yousif Jajou

Reasons for Judgment

MacDonnell, J.

[1] On August 2, 2017, the defendants appeared before this court for a judge-alone trial and were arraigned on an indictment charging as follows:

1. Fadi Esho and Yousif Jajou stand charged that they, during the period from and including the 1^st^ day of December in the year 2014, to an including the 31^st^ day of December in the year 2014, at the City of Mississauga, in the Region of Peel, did receive a financial or other material benefit knowing that it was obtained by or derived directly or indirectly from the commission of an offence under ss. 286.1(1) of the Criminal Code, contrary to s. 286.2(1) of the Criminal Code.

2. Fadi Esho and Yousif Jajou stand further charged that they on or about the 17^th^ day of December in the year 2014, at the City of Toronto, in the Toronto Region, did steal from Jennifer Villella while armed with an offensive weapon, contrary to s. 343(d) of the Criminal Code.

3. Yousif Jajou stands further charged that he, on or about the 17^th^ day of December in the year 2014, at the City of Toronto, in the Toronto Region, did while being bound by a probation order made on the 4^th^ day in the month of February in the year 2014, by the Ontario Court of Justice, Central West Region, fail to comply without reasonable excuse to the said order, namely keep the peace and be of good behaviour, contrary to s. 733.1(1) of the Criminal Code.

[2] The defendants pleaded not guilty to those charges. On August 15, 2017, after hearing the evidence adduced by the parties and the submissions of counsel, the matter was reserved. The defendants are before the court today for judgment.

A. Overview of the Judgment

[3] The allegations against the defendants arise substantially from their interaction with each other and with Jennifer Villella, Stefanie McQuinn and Sage MacMurray in the days and weeks leading up to the evening of December 16, 2014. The context for the charges, the Crown alleges, includes the involvement or intended involvement of all five of those individuals in the business of prostitution.

[4] The defendants are cousins. In December 2014, Mr. Esho was 21 years of age and Mr. Jajou was 22. Esho had a job splicing fiber optic cables. He was living with his brother’s family in an apartment in Etobicoke. Jajou worked as a roofer and was living at his parents’ home.

[5] In December 2014, Sage MacMurray was 18 years of age. She had been Mr. Jajou’s girlfriend for more than a year and for almost all of that time she had been working as a prostitute. She had been introduced to the business by Mr. Jajou. For about six months, between March and September 2014, they were partners, splitting her earnings fifty-fifty. She testified that by December she was working on her own and keeping all of her earnings to herself. She and Mr. Jajou remained in a romantic relationship, however, and he continued to be habitually in her company.

[6] In December 2014, Stefanie McQuinn was 20 years of age. In late November or early December, a message arrived on her Instagram account from a person, who turned out to be Sage MacMurray, inquiring as to whether she was interested in making money. In the course of a continuing exchange of messages it became clear that Ms MacMurray was attempting to recruit McQuinn into the sex trade. McQuinn had no prior experience in that respect but she was intrigued by the potential for profit. In short order, she and MacMurray came to an agreement: Ms McQuinn would provide sexual services to clients obtained by MacMurray in hotel rooms paid for by MacMurray and they would split McQuinn’s earnings equally. In accordance with that agreement, Ms McQuinn worked as a prostitute from time to time in the first two weeks of December, 2014.

[7] In December 2014, Jennifer Villella was 18 years of age and living with her mother and family in Bradford, Ontario. She had known Mr. Esho for a few years. Both of them testified that their relationship had included a sexual component but Ms Villella testified that as of December 2014 they were “just friends”; Mr. Esho testified that they continued to get together to have sex. On the afternoon of December 15, 2014, Mr. Esho drove to Bradford, picked up Ms Villella, took her to a mall, purchased lingerie for her, drove her to the Mississauga Hilton Hotel (where Mr. Jajou and Ms MacMurray were staying), and rented a room. Ms. Villella testified that Mr. Esho did those things to set her up in the business of prostitution. Mr. Esho denied that.

[8] Shortly after checking in at the hotel, Mr. Esho took Ms Villella to Jajou and MacMurray’s room. Ms McQuinn was present in the room with Jajou and MacMurray. At some point in the evening, Ms. Villella and Ms McQuinn were told that they were to go together to an ‘outcall’ at a downtown Toronto condominium. It was understood that they were to provide sexual services on the outcall. They were driven to the condominium by Esho, Jajou and MacMurray. After they were dropped off, and after MacMurray had collected half of the fee from the clients, Esho, Jajou and MacMurray drove back to the Mississauga Hilton.

[9] Villella and McQuinn had been told that the outcall was to be for two hours and that Esho, MacMurray and Jajou would return for them. As it turned out, those three individuals fell asleep and did not return. After a number of fruitless efforts to reach them, Villella and McQuinn obtained a ride back to Mississauga from the clients. They were angry at being left stranded and they decided to collect their belongings, leave the hotel, and begin providing prostitution services independently.

[10] The following evening, Ms Villella and Ms McQuinn checked into a room at the downtown Toronto Hilton Hotel. One or the other posted an advertisement online offering a ‘duo’, i.e. sexual services with two females. The advertisement came to the attention of Esho, Jajou and MacMurray. All three became irate that Villella and McQuinn had gone into business on their own and they decided to confront them. They enlisted a fourth person, a male identified only as “Sam”, to set up a date with McQuinn, ostensibly in response to the advertisement for a duo. They then accompanied Sam to the Toronto Hilton. They hid from sight as Sam knocked on Villella and McQuinn’s door and when the door was opened all four of them rushed in. They yelled and screamed at the girls, demanded money, searched through their belongings, took a number of items (including Ms. Villella’s wallet) and then fled from the hotel. Throughout the incident, Mr. Esho was armed with an expandable baton, which he was waving about and using to intimidate Ms. Villella.

[11] For reason I will develop below, I have reached the following conclusions.

[12] I am satisfied beyond a reasonable doubt that all four persons who invaded the hotel room were carrying out a joint plan to steal money and other valuables from both Villella and McQuinn. I am satisfied that each committed the offence of robbery as a principal offender. Accordingly, both Mr. Esho and Mr. Jajou are found guilty on count 2 in the indictment.

[13] It is an admitted fact that at the time of the robbery, Mr. Jajou was bound by a probation order, one of the terms of which required him to keep the peace and be of good behavior. By engaging in the robbery, Mr. Jajou breached that term. Accordingly, he is found guilty of the offence of breaching probation charged in count three.

[14] With respect to count one, I am satisfied beyond a reasonable doubt that during the time period set forth in the indictment Mr. Jajou was involved in Sage MacMurray’s business as a sex trade worker and that he was receiving material benefits that were derived from that business. He is therefore found guilty on count one.

[15] I reach a different conclusion with respect to Mr. Esho. While I have no doubt that he intended to profit from Ms Villella’s activities as a prostitute, there is no evidence that she actually engaged in any such activities. The Crown submits that by using Ms MacMurray’s cocaine and drinking her vodka Mr. Esho was receiving a material benefit from her work as a prostitute. I am not satisfied that in the circumstances of this case Mr. Esho’s conduct in that respect constituted the receipt of a material benefit. Accordingly, he is found not guilty on count one.

B. Preliminary Observations with respect to the Evidence

[16] There are a number of important principles to be borne in mind in deciding what the facts of this case are.

[17] Mr. Esho testified in his own defence. In the course of his testimony he denied that he was in any way involved in Ms Villella’s decision to work in the sex trade. He testified that the purpose for which he picked her up in Bradford and drove her to the Mississauga Hilton on the afternoon of December 15, 2014 had nothing to do with prostitution. He denied knowing that Sage MacMurray and Mr. Jajou were involved in prostitution. He denied that he knowingly received any benefit of any kind from their involvement in prostitution or anyone else’s involvement. He agreed that he went with MacMurray and Jajou to the downtown Toronto Hilton late on the evening of December 16, but he denied that he went for the purpose of a confrontation or a robbery and he denied involvement in any theft that occurred there.

[18] If Mr. Esho’s testimony is believed, he is not guilty of either of the offences with which he is charged. However, he does not have to be believed in order to be acquitted. Whether or not I am able to decide that I believe his testimony on material matters, he is entitled to be acquitted if his testimony, considered in the context of all of the evidence in the case, leaves me with a reasonable doubt as to his guilt. And even if his evidence does not give rise to a reasonable doubt, he is not necessarily to be convicted. Rejection of his evidence would not alter the nature or incidence of the burden of proof, which would remain on the Crown to prove beyond a reasonable doubt on the basis of the evidence that I do accept that he is guilty.

[19] Mr. Jajou did not testify, but many things that Mr. Esho said in his testimony are capable of assisting Mr. Jajou in his defence. Once again, with respect to those things Mr. Esho does not have to be believed before his testimony can assist Mr. Jajou. Whether or not Mr. Esho is believed on matters material to Mr. Jajou’s defence, Mr. Jajou is entitled to be acquitted if Mr. Esho’s testimony leaves me with a reasonable doubt as to Mr. Jajou’s guilt. And regardless of whether Mr. Esho’s testimony gives rise to a reasonable doubt, the burden remains on the Crown to prove beyond a reasonable doubt on the basis of the evidence that I do accept that Mr. Jajou is guilty.

[20] In support of its case against both defendants, the Crown relies on the testimony of Stefanie McQuinn, Jennifer Villella, and Sage MacMurray. While the evidence of all three of those witnesses must be carefully and cautiously considered, that is particularly so with respect to the testimony of the latter two.

[21] There were a number of frailties in Ms Villella’s testimony. She was reluctant to admit what was obviously true in relation to why she and Ms McQuinn booked a room at the downtown Toronto Hilton on the evening of December 16. Her professed lack of memory with respect to whether she had ever worked as a prostitute in the past was not credible on its face and was inconsistent with her testimony at the preliminary inquiry held just seven months earlier. There were many other inconsistencies between the evidence that she gave here and things that she had said in the past. When confronted with those inconsistences, she routinely retreated to an unpersuasive claim of an inability to recall. I would not go so far as to say that it would be dangerous to rely on her testimony about material matters, but I would not do so in the absence of evidence from other sources that tends to confirm what she has said in that regard.

[22] With respect to Sage MacMurray I would go further. Ms. MacMurray conceded that she recruited Ms. McQuinn to become a prostitute. She conceded that she received financial benefits from Ms. McQuinn’s prostitution. She admitted that she played a central role in the planning and execution of the robbery of Ms. Villella and Ms. McQuinn. She testified that both alcohol and cocaine were part of her lifestyle in December 2014 and that she was under the influence of both at the time of the robbery. She was initially charged with a number of offences, including procuring Ms. McQuinn, but she was permitted to only plead guilty to assault and theft, for which she received a conditional sentence. While on bail awaiting trial on those matters, she breached the curfew term of her release order on three occasions. On one of those occasions she provided a false name to the police. In the course of her evidence in this trial on an important point, she gave one version of events in examination in chief, she resiled from that version in cross-examination, and then she returned to the original version during re-examination.

[23] Experience and common sense teaches that in circumstances such as those, the testimony of Ms MacMurray should be approached with great care and caution. I am entitled to rely on her testimony even if it is not confirmed by other evidence, but I recognize that insofar as her evidence inculpates the defendants in the crimes charged it would be dangerous to do so. Accordingly, before using her evidence in deciding whether the Crown has proved the guilt of either defendant beyond a reasonable doubt, some confirmation of her testimony from somebody or something other than Ms. MacMurray should be sought. To be confirmatory, the other evidence must tend to show that Ms. MacMurray is telling the truth about the parts of her evidence that inculpate the defendants, although it need not in itself inculpate them. It must give comfort that she can be trusted about what she said about their involvement.

[24] Sage MacMurray is what is known in law as a “mixed witness”. That is, while there are part of her evidence that tend to inculpate the defendants there are also parts that tend to exculpate them. Indeed, counsel for Mr. Jajou went so far as to put to Ms MacMurray that she was being “brutally honest” in her testimony. With respect to the portions of her evidence that may assist the defence, the question is not whether her testimony is confirmed by other evidence but whether the parts that may assist the defence, standing alone or along with the other evidence in the case, leave a reasonable doubt about the defendants’ guilt.

C. The Facts of the Case

(i) The relationship between Sage MacMurray and Yousif Jajou.

[25] Ms MacMurray testified that she met Mr. Jajou outside of a bar in Wasaga Beach in 2013, when she would have been 16 or 17, and that they became boyfriend and girlfriend. At some point in 2013 Jajou began to talk to her about the sex trade and about the money that could be made from it. Ms MacMurray was interested, and in March 2014 she began working as a prostitute.

[26] At the beginning, they were partners in the business. Ms MacMurray testified that Mr. Jajou showed her how to set up websites and how to deal with customers and they split her earnings fifty-fifty. She testified that around September 2014 she began doing everything on her own, placing advertisements online, handling the phone calls and arranging the hotel rooms in which she generally carried on business. Once she began doing everything on her own, she was no longer splitting her earnings with Jajou.

[27] Their romantic relationship continued, however. He would come to see her in the hotel rooms where she was working and when she was not with a client they would hang out, drink alcohol and consume cocaine. He would sometimes stay in her room overnight. On occasion they rented a hotel room solely to have a place where they could spend some private time together. The question of who was paying for the rooms, the alcohol and the cocaine was explored by the parties during the trial. The substance of Ms MacMurray’s evidence was that sometimes she would pay and sometimes Mr. Jajou would pay. As she put it, it was in the nature of their romantic relationship that “what is mine is his”. When she paid, she would do so with money earned from prostitution. When Mr. Jajou paid, it was with money he had earned as a roofer.

[28] Ms MacMurray continued to work as a prostitute up to December 23 2014 when she was arrested for the robbery of Ms Villella and Ms McQuinn. She testified, in substance, that while Mr. Jajou was often present when she was working in the latter part of 2014, he was no longer involved in the business. She testified that he would come to the hotels because they were in a romantic relationship, because she wanted to see him, and because she asked him to visit her. As will become clear, I do not accept Ms MacMurray’s minimization of Mr. Jajou’s involvement in her work as a prostitute in that time period.

[29] Ms MacMurray had met Mr. Esho at some point after she became involved with Mr. Jajou and she knew that they were cousins. Esho would sometimes visit while she and Jajou were hanging out in hotel rooms. Ms MacMurray testified that she did not recall Mr. Esho ingesting any cocaine, drinking alcohol or discussing the prostitution business during those visits.

[30] In relation to Mr. Jajou’s involvement in the escort business, the testimony of Stephanie McQuinn is important.

[31] In late November or early December 2014, when she was 20 years of age, Ms McQuinn received a message on her Instagram account from a person, who turned out to be Sage MacMurray, inquiring as to whether she was interested in making money. In the course of the continuing exchange it became clear that MacMurray was talking about prostitution. Ms McQuinn had never done that sort of thing before, and she was nervous, but she was intrigued and she told Ms MacMurray that she would give it a try. They met in person for the first time a couple of days later at a hotel near the airport. MacMurray explained what she would provide to McQuinn – transportation, hotels, food, condoms and security. In return, MacMurray would get half of McQuinn’s earnings. McQuinn agreed to do a trial run that night. She was taken to a hotel room, MacMurray placed an advertisement online, a client showed up, the client paid McQuinn the fee, McQuinn put the money in the room safe, sexual intercourse occurred, the client left, MacMurray came back, the safe was opened, and the fee was split.

[32] Later in the evening, Mr. Jajou arrived, bringing food. The three of them ate in the hotel room. McQuinn continued to see clients that night. When clients arrived, MacMurray and Jajou would wait outside in the hallway or stairwell until McQuinn was done. Eventually, they called it a night. McQuinn slept in the room in which she had been working. Ms MacMurray and Mr. Jajou had their own room. The next morning the three of them had breakfast together and then Jajou left to go to work. Ms McQuinn saw a number of additional clients that day. After a day or so of this she went back home.

[33] After a time, MacMurray contacted Ms McQuinn and asked her to come back to work. McQuinn agreed to do so. She met MacMurray at a second hotel, which was also in the Brampton area. When they went up to MacMurray’s room, Mr. Jajou was already there with someone the parties referred to as “the blonde girl”. It was explained to McQuinn that the plan was for her and the blonde girl to perform duos.

[34] That night, Ms McQuinn and the blonde saw a number of clients. She testified that the routine was largely the same as it had been earlier: a client would arrive, MacMurray and Jajou would leave the room, the client would provide the fee, the money would be put into the room safe, the service would be provided and the client would leave. MacMurray and Jajou would then return and one or the other of them would take the money out of the safe. McQuinn testified: “They would both do it, like randomly, one person would do it first and then the other person. It wasn’t strict like Yousif did it or Sage did it all the time. It was whoever grabbed it and they split it with each other and they split it with us”.

[35] Ms McQuinn testified that while the duos were going on, it was just the four of them at the hotel: McQuinn, the blonde, MacMurray and Jajou. Clients were arriving at half-hour intervals. When clients were not being serviced, the four of them would hang out together listening listen to music and drinking. Ms MacMurray described the events at the second hotel differently. She testified that McQuinn was seeing clients on her own, that she did not recall a blonde girl being present, and that she did not recall McQuinn participating in duos.

[36] In cross-examination, Ms McQuinn resiled from her evidence that she saw Jajou give money to the blonde. She said that it was just an assumption that she had made, based on her impression that she (McQuinn) was working for MacMurray and that the blonde was working for Jajou. She formed that view in part because both Jajou and MacMurray handled the money that was paid by the clients and deposited in the room safe. A substantial part of the cross-examination of Ms McQuinn concerned the fact that she had not mentioned the blonde – or doing duos with the blonde, or that the blonde was working for Jajou, or about Jajou taking money out of the safe – in her statement to the police immediately after the robbery, on a subsequent occasion when the police showed her some photographs, in her preparation meeting with the Crown prior to the preliminary inquiry, in her evidence at the preliminary inquiry, or in her preparation meeting with the Crown prior to this trial.

[37] Ms McQuinn’s explanation for not mentioning those things was that she believed that what the police were investigating and what the case was about was the robbery at the Toronto Hilton. She said that she did not think that the duos with the blonde had anything to do with the robbery. In that sense, she said that she ‘forgot’ about the blonde. She was asked why, then, she had testified about the duos here, in this trial. She answered, persuasively in my view, that it was not because she had changed her mind about whether the duos were relevant but because the questions she was asked invited her to talk about them.

[38] In an effort to undermine that explanation, Ms Tatsis-Yeh took Ms McQuinn to a number of things that she had said in her initial statement to the police and in her testimony at the preliminary inquiry. In my opinion, nothing that Ms McQuinn was shown to have said in the past was inconsistent with her evidence here about the duos or about Jajou collecting money after the duos. As I understand it, her position has always been that she was working pursuant to an agreement with MacMurray, not with Jajou, and her evidence is that apart from when she was doing duos she never saw Jajou handle any of the money. The prior statements are not inconsistent with that position. What Ms. Tatsis-Yeh’s suggestion came down to, in the end, was that McQuinn had opportunities on prior occasions to talk about the relationship between Ms. Jajou and the blonde and about his access to her earnings and that she did not take advantage of those opportunities. I found Ms McQuinn’s explanation to be credible and I find as a fact that the duos with the blonde occurred in the manner and in the circumstances described by Ms McQuinn.

[39] After a day or two of duos, McQuinn went back to her father’s home. It appears that between then and the evening preceding the robbery she worked from time to time as an escort with the assistance of MacMurray. Mr. Jajou was not around on those occasions. It was Ms McQuinn’s understanding that he was at work.

[40] Around December 15, MacMurray contacted McQuinn again and invited her to come to the Hilton in Brampton to work. When McQuinn arrived at the hotel, MacMurray took her up to a room where Jajou was present. McMurray then began to post some ads online advertising McQuinn’s services. In the course of that evening, McQuinn met Jennifer Villella for the first time. Ms Villella was in the company of Mr. Esho.

(ii) The relationship between Mr. Esho and Jennifer Villella

[41] In December 2014 Jennifer Villella was 18 years of age and living with her family in Bradford. She and Mr. Esho had known each other for about two years. They agree that on the afternoon of December 15, 2014 Mr. Esho came to Bradford and picked her up, that he drove her to the hotel in Mississauga where Mr. Jajou and Ms MacMurray already had a room, and that upon arrival at the hotel he rented a room. They do not agree, however, with respect to the purpose for which they were at the hotel.

[42] Ms Villella testified that prior to December 15 she and Esho had a conversation about her working in the sex trade and splitting the earnings between them. She said that she could not remember who brought the topic up. She initially said that she had never worked as a prostitute before, but later she said that she could not recall whether she had. Her assertion of a lack of recollection in this respect was not credible. She was less than straightforward about the details of the plan underlying the trip to Mississauga, but she said that it included posting advertisements on “Backpage” (a website for the purchase and sale of sexual services).

[43] Mr. Esho testified to a different purpose for the trip to Mississauga. He testified that he and Ms Villella had a relationship that involved getting together to “chill”, which to him meant hanging out, eating, watching movies and having sex. Ms Villella agreed that the relationship had once included sex but said that as of December 2014 they were ‘just friends’. Mr. Esho testified that on the afternoon of December 15, he received a text from Ms Villella asking him to come to get her so that they could chill. He testified that he drove to Bradford, picked her up, and proceeded to a mall where he purchased lingerie for her. He said that he purchased the lingerie because she asked him to, and because “it just turned me on more” for sex. He then drove her to the Mississauga Hilton. He agreed that he and Ms Villella could have gone to a hotel in the Bradford area to chill but, he said, he had received a message from Mr. Jajou indicating that he was at the Mississauga Hilton and he decided that he wanted to see Mr. Jajou and hang out with him.

[44] Mr. Esho denied having any idea that Ms. Villella was interested in working in the sex trade. He denied that driving her to the Mississauga Hilton had anything to do with assisting her to work in the sex trade. As will become clear, I reject his evidence in that respect. I have no doubt that his purpose in bringing Villella to the Toronto area was to have her work as a prostitute.

(iii) The outcall

[45] Ms Villella testified that after Mr. Esho booked them into a room he took her to Jajou and MacMurray’s room. Ms McQuinn was there with Jajou and MacMurray. Villella had never met McQuinn before and Esho introduced them to each other. He said to McQuinn, with reference to Ms. Villella: “She’s with me”. He told McQuinn that he and Villella were to have their own room and that they were going to “do their own thing.” Ms MacMurray testified that Mr. Esho told her that he had purchased lingerie for Villella “to work”.

[46] Ms McQuinn testified that the five of them sat around and talked about, among other things, providing escort services. Ms. Villella testified that ads were being posted on Backpage at the time but she was vague about who was doing it. Ms MacMurray also testified that ads were being posted – she said that she posted McQuinn’s ad but that she could not recall who posted Villella’s. Before too long, Villella and McQuinn were told that they were to go on an ‘outcall’. Ms MacMurray testified that she could not recall if the outcall was her idea or that of Jajou or Esho. Villella, McQuinn and MacMurray all testified that the purpose of the outcall was for Villella and McQuinn to provide sexual services for money.

[47] Mr. Esho denied knowing anything about this. He testified that after checking into the hotel, he and Villella had a few drinks with Jajou, MacMurray and McQuinn in Jajou’s room. He said that he knew that MacMurray was Jajou’s girlfriend, but he said he had no idea that she was a prostitute. He said he did not talk to McQuinn during this visit. After 20 or 30 minutes he and Villella returned to their own room, ordered food and drinks from room service, had sex and watched a movie. After a few hours, they returned to Jajou’s room and “we (i.e., he, Villella, MacMurray and McQuinn) chilled out together”. He said they were drinking and doing cocaine. At one point, he and Jajou went out for a cigarette. When they returned, the three women were still in the room. Mr. Esho testified: “They wanted me to drive them downtown, to a condominium there…I did not know why they wanted to go there but [MacMurray] said that she was going to pay for my gas [so] I didn’t care”.

[48] Mr. Esho agreed that he had no information that Ms Villella had ever met MacMurray or McQuinn prior to that evening. It was suggested that it made no sense that Ms Villella would suddenly be going off with them to a downtown Toronto condominium and that surely he would have asked her what she was doing. He responded: “She wasn’t my girlfriend too so I can’t tell her to stay with me…We had sex, we were done, so if she wants to leave I’m not going to hold her as a hostage in the room to force her ‘you gotta stay with me, you gotta have sex. She decides to leave, she can leave, I don’t care.” He said that he never asked Ms Villella if she was coming back. He repeated: “If she wants to leave I don’t care.” He agreed that she never took her belongings with her. He said: “probably she forgot”.

[49] Villella, McQuinn, MacMurray and Jajou all got into Mr. Esho’s car and he drove them to the downtown condominium. Mr. Esho insisted that he still did not know what the purpose of the trip was. However, Ms MacMurray testified that there was a discussion in the car about the money to be paid by the clients: half was to be paid upfront and half when the outcall was over. The evidence is in conflict with respect to whether MacMurray went into lobby of the condominium to collect the upfront amount or whether Villella or McQuinn brought it out to her. In either event, it was MacMurray’s understanding that half of the amount was to go to her and half to Mr. Esho. After dropping Villella and McQuinn at the condominium, Esho, Jajou and MacMurray returned to the Mississauga Hilton.

[50] I pause at this point to address the credibility of Mr. Esho’s claim that the purpose of his trip from Bradford to the Mississauga Hilton with Ms Villella had nothing to do with her anticipated involvement in prostitution. That claim is manifestly untrue. For one thing, it is contradicted by Ms. Villella, who said that ads were being posted on Backpage prior to the outcall, by Ms. McQuinn, who said that the four of them were sitting around in the hotel room discussing the escort business prior to the outcall, and by Ms MacMurray, who said that Mr. Esho told her he bought lingerie for Villella “to work”, and who said that there was a discussion in the car on the way to the outcall about payment for the women’s services. Further, the circumstantial evidence, considered as a whole, points overwhelmingly to the conclusion that he had brought Ms Villella to Mississauga to begin working for him as a prostitute. The circumstances include the fact that he picked Ms. Villella up in Bradford, that he took her to a mall where he bought lingerie for her, that he drove her to a hotel near the Toronto airport where his cousin was staying with a sex trade worker (Ms MacMurray), that he rented a room in that hotel and introduced Ms. Villella to his cousin and the sex trade worker, that another woman (McQuinn) was in the company of the sex trade worker, that within a few hours of arriving at the hotel, he drove Villella, McQuinn, MacMurray and Jajou to a condominium in downtown Toronto where Villella and McQuinn were dropped off for an outcall.

[51] His evidence that he had no idea why Ms. Villella was suddenly going to leave him and go off to a condominium in downtown Toronto with someone she had just met, that he agreed to drive her there, and that he made the trip, dropped her off, and then returned to their Mississauga hotel room – all without a single question about what was going on – bordered on the absurd. He knew full well that Ms. Villella and McQuinn were going on an outcall, and he knew that because that was the very purpose for which he had brought Villella to the hotel in Mississauga a few hours earlier.

(iv) Villella and McQuinn are left stranded

[52] The agreement was that the outcall would last two hours. While the expectation had been that sexual services would be provided, no sexual activity occurred. The clients just wanted the women to hang out, to drink and do drugs and to listen to music. Villella and McQuinn had been told that Esho, Jajou and MacMurray would return to take them back to the Mississauga Hilton. However, Esho, Jajou and MacMurray had fallen asleep. After all of their attempts to contact them failed, McQuinn and Villella became angry and decided that they no longer wanted to work for them. They discussed getting their own place and working together, doing duos. They decided that they would go back to Mississauga, collect their belongings and leave.

[53] The clients offered to drive them back to the hotel. When they got there, Ms Villella went to the room Mr. Esho had rented. He was sleeping. She collected her belongings and left. Meanwhile, Ms McQuinn had gone to Jajou and MacMurray’s room. They too were sleeping but MacMurray woke up. McQuinn testified that she (McQuinn) demanded her share of the money. It is not clear if she was referring to the earnings from the whole night or just from the outcall. MacMurray refused to pay and McQuinn left. MacMurray testified that McQuinn told her that she was going home to her father. She testified that she did not say anything, that she just watched McQuinn pack her bag and leave. She testified that after McQuinn left, Jajou said that she (MacMurray) should have received a cut of McQuinn’s money, presumably the balance of the money owing from the outcall. She said that he sounded upset but she was not able to say why he was upset.

[54] When McQuinn and Villella went down to the hotel lobby the clients who had driven them to the hotel were still there. They offered to take the women back to the condominium. The offer was accepted.

(v) Villella and McQuinn strike out on their own

[55] When they got back to the condominium, McQuinn and Villella continued to discuss their next move. In this respect, their testimony differs. In my view, the difference flows from Ms Villella’s reluctance to acknowledge the extent of her willingness to participate in the sex trade. With respect to the discussions that occurred and the steps that were taken based on those discussions the evidence of McQuinn is more credible and reliable than that of Villella.

[56] McQuinn testified that she and Villella agreed that they would get a hotel room in Toronto and perform duos. McQuinn fell asleep at the condominium. When she woke, Villella told her that a friend with a tow truck was going to drive them to a hotel. En route to the hotel, they stopped at a gas station where Villella purchased a prepaid Visa card so that they could purchase ads on Backpage. Then they proceeded to the Hilton Hotel in downtown Toronto.

[57] At the Hilton, McQuinn paid for the room, in cash because she did not have a credit card. Because she had no credit card she also had to pay a damage deposit. When they got to the room they started to get ready, doing their hair and makeup. McQuinn testified that Villella was posting ads online and communicating with potential clients. McQuinn saw the ads – they had photos of both her and Villella and they advertised duos.

(vi) The plans of McQuinn and Villella are discovered

[58] Ms MacMurray testified that at some point during the day on December 16 she was told that Ms Villella was ‘missing’. She did not recall who told her this. That evening, an advertisement offering the services of McQuinn and Villella for a duo was found on Backpage. MacMurray testified “we were all kind of pissed off”. By “we” she meant herself, Jajou and Esho. She was angry, she said, because McQuinn had lied to her – she had said she was going home when she was actually going off to work with Villella. She said that Esho was angry “because he went out of his way to pick her up and buy her lingerie and stuff…” and he felt that he had wasted his time. She could not remember why Jajou was angry. The three of them discussed the matter among themselves and with a fourth person, whom she understood to be a friend of Esho. MacMurray did not know this person, but in his testimony Mr. Esho referred to him as “Sam”. MacMurray testified that all four of them were doing drugs and all except Esho were drinking. She said that she and Jajou had consumed a bottle of vodka between them. Jajou had consumed maybe twice the amount of cocaine that the others had. The cocaine seemed to make him agitated and he was speaking aggressively. MacMurray did not see how much cocaine Esho had used but she did not note signs of impairment.

[59] According to MacMurray, a plan was formed to go the Toronto Hilton to confront Villella and McQuinn. Late in the evening, they all got into Esho’s car and began the trip downtown. The drinking and use of cocaine continued in the car. She said that they discussed having someone pretend to be a client in order to gain entry to Villella and McQuinn’s room. She testified that “we were all part of that discussion”. While she could not recall anything specific either defendant said, she remembered that everyone was very angry, “cussing” and that everyone’s voices were raised. She testified that “Sam” texted a response to McQuinn and Villella’s advertisement and that he was able to set up a ‘date’ at the hotel.

[60] MacMurray recalled that en route to the hotel Mr. Esho had a phone conversation with Ms. Villella in which Villella seemed to be asking Esho to work with her. She believed that Ms. Villella invited Esho to come to see her.

[61] Mr. Esho’s description of the events of December 16 was different from that of Ms. MacMurray. He testified that when he woke up in the Mississauga hotel room and discovered that Villella’s belongings were gone, he thought: “She’s left, she’s gone.” He said: “I didn’t care, I went downstairs. I checked out from my room and I went back home, showered, ate, chilled with my brother and his kids.” He testified that during the day Ms. Villella “kept calling me…she called me over ten times, texting me ‘Please come I want to see you, come I want to talk to you’… She was bugging me, bothering me to go see her”. He said he kept telling her he was with his family and could not talk. He said: “I believe she said she was in downtown…”, “She wanted to talk about escort thing”, “She wants to see me face to face and talk about escorting”. He said that she had never talked to him about prostitution before and that her sudden interest in it was weird. He testified that Ms Villella had not told him exactly where she was – all he knew was that she was downtown and that she was with Ms McQuinn.

[62] That evening, Mr. Esho returned to the Mississauga Hilton where he met up again with Jajou and MacMurray. They were all drinking and “doing some lines” of cocaine. He testified that MacMurray was in and out of the room. He said: “I don’t know what she was up to…Then [my cousin and I] went down for a cigarette because we can’t smoke in the room”. They had the cigarette downstairs in front of the hotel. While in front of the hotel, “I seen [MacMurray] coming up with a guy… she introduced me to him as Sam”. She said that Sam was her friend. He testified that he had never met Sam before. He said that MacMurray told him that “they want to go downtown because [Sam] had a date with Stefanie [McQuinn]”. He said that the four of them went back to Jajou and MacMurray’s room to drink and do more cocaine. Then, he said, he and Sam went to get his car from the parking lot.

[63] After getting the car, Mr. Esho drove to the front of the hotel and waited for Jajou and MacMurray to come down. Sam was in the front seat, Jajou and MacMurray got into the rear seat. Crown counsel asked Esho where he thought they were going. He replied: “Downtown” Why? “Just for a drive. Downtown she (MacMurray) say. Lets’ go”. He denied that he had any intention at that point of going to see Ms Villella. He testified that during the drive Sam said he was setting up a date with McQuinn. This was inconsistent with his evidence that MacMurray and Sam had told him this earlier, when he first met Sam. Esho was asked whether he knew that Sam was going to be paying to have sex with McQuinn. He replied: “Something like that.” Esho was asked whether he spoke to anyone on the phone while driving downtown. He replied: “Like what I said, Jennifer was calling me more than ten times, like every half hour or hour she was calling or texting me, so I answered and put her on speaker in front of everybody”.

[64] After setting up a date with McQuinn, Esho testified, Sam said “Let’s just go all surprise them”. Esho testified: “So I was going to surprise Jennifer.” He was not able to explain how this made sense if the plan was for Sam to have sex with Stefanie. He was asked what he expected to happen when they met up with McQuinn and Villella: “We were all about going to talk because Jennifer she wants to talk to me since morning so I wanted to go see why she wants to talk to me face to face.” Did he let Jennifer known he was coming downtown with Sam? “No”. It was going to be a surprise? “Yeah”.

[65] I pause again to comment on the credibility of Mr. Esho’s evidence.

[66] I reject his testimony that he did not care that Villella had taken her belongings and left the Mississauga Hilton on the morning of December 16. His assertion of indifference was related to his denial of knowledge that Villella was in Mississauga to engage in prostitution and to his denial of any involvement in her plans in that respect. As I have said, I reject those denials. Further, the evidence of Ms MacMurray was that Mr. Esho was angry when it was discovered that McQuinn and Villella were setting up business in the sex trade together.

[67] Mr. Esho’s explanations for the trip downtown are not only inconsistent with each other, they are simply not credible. His first explanation was that they were just going for a drive. His second explanation was that he was driving Sam to his ‘date’ with Ms McQuinn. Why, one might ask, would he take it upon himself to drive a total stranger from Mississauga to downtown Toronto just so that he could meet with a sex trade worker? And why would MacMurray and Jajou be coming along? He said that part way through the trip he decided to take the opportunity to have a discussion with Villella about her desire to become involved in sex work. How was he to have that discussion while Sam was engaging in sex with McQuinn?

[68] I find as a fact that the intention of everyone who got into Mr. Esho’s car for the trip downtown was to gain entry to McQuinn and Villella’s room and to throw a scare into them. All of them, except perhaps Sam, were angry because the women had left the hotel in Mississauga, where they were expected to work as prostitutes and had set up business on their own.

(vii) The arrival at the Toronto Hilton

[69] Mr. Esho parked his car some distance from the Toronto Hilton. He said that he did so because he did not want to have to pay for parking near the hotel. The logic of that decision is questionable in that he parked sufficiently far away that they had to take a taxi the rest of the way to the hotel. He denied that the real reason why he parked where he did was that he did not want his car to be seen near the hotel.

[70] The hotel video surveillance system shows Esho, Jajou, MacMurray and Sam arriving at the hotel just before midnight and proceeding toward the elevators. Mr. Esho and Ms MacMurray agreed that upon arrival the four of them proceeded to a stairwell to wait while Sam texted McQuinn to get the room number. MacMurray testified that alcohol and cocaine were being consumed in the stairwell.

[71] Mr. Esho testified that while they were waiting there was no conversation about stealing things. He was asked whether he would have gone into the room if he had heard any conversation about stealing. He responded: “No, I was not even going to go with them from the beginning if I knew there was something going to happen like that.” Ms. MacMurray, on the other hand, testified that there was a discussion about what was to happen once they got the room number. In examination in chief she testified that the plan was that Sam, pretending to be a client, would knock on the door. When the door was opened they would all rush in and steal money and other valuables from Villella and McQuinn. She said that someone was supposed to take the money, someone was supposed to take electronics, and someone was to unplug the room phone. She said that they were going to do this because “we all felt disrespected.” Later, however, Ms MacMurray appeared to resile from that evidence. Under cross-examination by counsel for Mr. Esho, she agreed that although they were angry that McQuinn and Villella had cut them out of the picture, the plan was just to confront them, not to assault or rob them. Due to the influence of cocaine, however, she flew into a rage immediately upon entering the room and attacked McQuinn. Counsel for Mr. Jajou put the matter to MacMurray more directly. She asked:

Q. So is it fair to say that at no point in time did you guys decide that you were going to go in that room specifically to rob the two girls, fair enough?

A. Correct

Q. At no point in time did you guys discuss that you were going to that hotel room for the purposes of robbing these girls?

A. I don’t believe so.

Q So when the door opened, the adrenalin kicked in and you became the way you did unfortunately?

A. Correct

[72] After the parties were finished asking questions, I asked Ms. MacMurray about the apparent contradiction between her evidence in examination in-chief and her evidence in cross-examination. I asked whether what she said in examination in-chief and in cross-examination were both correct. She said that what she said in-chief was the truth. She said that under cross-examination “I just got overwhelmed with all the questions… There was definitely a plan, but no plan to hurt anybody.”

[73] The parties then asked more question. In response to questions from counsel for Mr. Esho, she said that she had agreed with the suggestions put to her in cross-examination “simply because it was overwhelming and I wasn’t processing at my full speed… To relive this event is disturbing to say the least, so being asked so many questions about this stuff…” She agreed that there was no plan to use violence or to use weapons, just a discussion about taking things. It was a very last minute plan but it was planned. “The plan was to knock on the door and once you were allowed into the room to take things?” “Yes”

[74] The flip flop in Ms. MacMurray’s evidence about whether there was a plan to rob Villella and McQuinn is obviously a circumstance calling for caution before relying on her evidence. Even accepting her explanation, which I do, the fact remains that she has demonstrated a willingness to say things that are not necessarily true, despite being under oath. Having said that, her testimony that the plan included stealing from McQuinn and Villella finds considerable confirmation in the evidence that I will come to in the next section of these reasons.

(viii) The events inside the hotel room

[75] Mr. Esho and Ms MacMurray both testified that once Sam obtained the room number from McQuinn, they all left the stairwell and proceeded to the room. Ms MacMurray testified that she, Esho and Jajou hid down the hall while Sam knocked on the door. Mr. Esho denied that. He testified that all four of them stood right in front of the door. I reject Mr. Esho’s evidence on this point. Ms MacMurray’s evidence was confirmed by both McQuinn and Villella, who initially saw only Sam standing at the door. Mr. Esho also testified that when the door was opened the four of them simply walked into the room. I reject Mr. Esho’s evidence on this point as well. The evidence of Ms. Villella is that Jajou and MacMurray “pushed through the door” followed a few seconds later by Esho, and that they all “ran” into the room. Ms McQuinn also testified that they ran into the room and Ms. MacMurray described them as ‘rushing’ into the room.

[76] There is no dispute that Ms MacMurray immediately zeroed in on Ms. McQuinn, that she slapped her face, and that she pulled her by the hair toward the closet safe and said “Open it up, give me the money, bitch”. McQuinn testified that there was no money in the safe. MacMurray testified that there was $200, which she took. The position of the defendants is that they had nothing to do with what MacMurray was doing, that she was acting on her own, and that they were in effect innocent bystanders.

[77] In the course of his testimony, Mr. Esho was asked what he thought was going to happen when he walked into the room. He replied: “We were just going to talk”. What was he there to talk about? “Me and Jennifer [Villella], why she wants to see me face to face and talk about escort thing”. He testified that he had no expectation that MacMurray would assault McQuinn. What was his reaction when he saw her do that? “To be honest, I was shocked and scared. This was my first time seeing these kind of things, like hitting her, punching her, yelling ‘where’s the money?’” He was asked whether he did anything in response: “Yes, I saw my cousin [Jajou] was really high and drunk standing in the middle of the room. I told him ‘please tell your girlfriend to stop hitting and stop yelling like that’”. He said that he did not think that Jajou heard him, because he was so high. Did MacMurray ever struck Villella? “No, she could not reach [Villella] because I was standing in front of [Villella]. I kept her away from [MacMurray] because [MacMurray] was too high and drunk and did not know what she was doing, so I kept her to not get hit by her like [McQuinn did].”

[78] In substance, Mr. Esho’s testimony was that the only thing he did in the room was protect Villella from MacMurray. He testified that he did not have a weapon and, specifically, that he did not have a baton. He agreed that he owned a baton and that he had had it with him the night before at the Mississauga Hilton, but he said that he had left it at his brother’s apartment earlier that day. He testified that he did not take anything from the room when he left, and in particular that he did not take Ms Villella’s wallet.

[79] Mr. Esho testified that they had all been consuming cocaine and drinking heavily that night and that by the time they got to the Toronto Hilton, they were extremely high. He said that Jajou was higher than anyone else. He said that when MacMurray was assaulting McQuinn, Jajou was standing in the middle of the room looking shocked, as if he did not know what was going on. When Esho told Jajou to tell MacMurray to stop hitting McQuinn, Jajou did not respond. Esho said that he did not see Villella give her wallet to Jajou, and that as far as he knew Jajou did not take anything from the room.

[80] In relation to what Mr. Jajou was doing in the course of the incident, his counsel relies not only on Mr. Esho’s evidence but also on the testimony of Ms MacMurray. She testified that Jajou was quite high or drunk, and that she never saw him hit anyone, threaten anyone or steal anything. However, she was also clear that she was not playing close attention to him. In examination in-chief, she testified:

Q. What was Yousif doing?

A. I can’t remember

Q. Was he in the room?

A. Yes

Q. What side of the room was he on?

A. I think the middle … of the room

Q. Do you remember him saying anything?

A. No, like we all went our own ways in the room, I wasn’t really paying too hard of attention.

[81] In cross-examination she testified:

Q. With respect to Yousif, once you were in the hotel room, the only thing that you recall about Yousif is seeing him in the middle of the room?

A. Yeah, I’m not too sure what he was doing.

[82] Mr. Esho said that they were in the room for no more than three minutes. How did he feel when leaving? “I was scared. I knew Sage had done something bad.” Why was he scared? “Because it was the first time seeing this, I told you.” He said that Jajou too appeared scared when they left.

[83] The hotel security video system captured images of Esho, MacMurray, Jajou and Sam leaving the hotel at about 12:26 a.m. When they reached the outside, they broke into a sprint across University Avenue. Mr. Esho was asked why he was running. He responded: “Because I was scared and I did not want to be there no more”. What was he scared of? “I’d seen Sage hitting, punching, yelling, and everyone was high, and I was high too.” After crossing University Avenue, they got into a cab and took it to where Mr. Esho had parked his car. He then drove them all out of the downtown area.

[84] I reject Mr. Esho’s testimony that he and Mr. Jajou were, in essence, innocent bystanders to a sudden explosion of rage on the part of Ms MacMurray. Completely apart from the fact that his version of events was contradicted in material ways by the testimony of Villella, McQuinn and MacMurray, which I will come to presently, his minimization of his role in the incident was not credible.

[85] The assertion underlying Mr. Esho’s explanation for his presence in the hotel room was that he first learned of Villella’s interest in working in the sex trade earlier that day, when she began texting him to meet with her to discuss the subject. For reasons set forth earlier, I reject that assertion. His entire purpose in bringing Villella to the Greater Toronto area was to have her work as a prostitute. In furtherance of that purpose he had driven her and McQuinn to an outcall on the evening of December 15. In light of those findings, his explanation for his attendance at the hotel room on December 16 is obviously untrue. Further, if the purpose of the visit was to discuss the prospect of Villella becoming a prostitute, why would he not have told her he was coming? And why would he have thought it appropriate to have that discussion in the same room and at the same time as Sam was to be receiving the sexual services of McQuinn?

[86] In addition, his account of his state of mind at the time of the incident beggars belief. He testified “I was scared. I knew [MacMurray] had done something bad.” Why was he scared? “Because it was the first time seeing this, I told you.” He was asked why he sprinted across University Avenue after leaving the hotel. “Because I was scared and I did not want to be there no more”. What was he scared of? “I’d seen [MacMurray] hitting, punching, yelling, and everyone was high, and I was high too.” Mr. Esho appears to be a healthy and fit young man. He has been employed variously as a dump truck driver, landscaper and excavator. He was accompanied by two other young men, one of them a roofer. The suggestion that he was reduced to a state of shock and fear by a relatively minor assaultive outburst by 18-year-old Sage MacMurray was not credible.

[87] In my opinion, the evidence with respect to what actually occurred in the hotel room and with respect to the role that the defendants played in those events is to be found in the testimony of Villella, McQuinn and MacMurray.

[88] At the outset of these reasons, I observed that there are reasons to be cautious in relying on the evidence of Ms Villella. I also said that there are reasons to regard reliance on the inculpatory aspects of Ms MacMurray’s evidence as dangerous. I indicated that before relying on what those witnesses said in support of the Crown’s case confirmation of their testimony on material matters should be found. With respect to what occurred in the course of the incident, however, the evidence of Villella is confirmed in material respects by that of MacMurray, the evidence of MacMurray is confirmed by that of Villella, and the evidence of both is confirmed by that of McQuinn.[^1] Ms. McQuinn was a very straightforward and credible witness. She showed no tendency to exaggerate or to shift responsibility. In the latter regard I would note that she resisted the invitation of counsel for Mr. Esho to blame Ms MacMurray for the fact that she had become involved in prostitution. Notwithstanding the undisputed evidence that Ms McQuinn had in fact been procured by MacMurray, Ms McQuinn insisted that it was still her own decision.

[89] I have already indicated that I reject Mr. Esho’s evidence that he, MacMurray and Jajou were not hiding when Sam knocked on the door. I have also indicated that I reject Mr. Esho’s evidence that they simply walked in when the door was opened. As I have said, the evidence of Villella was that Jajou and MacMurray “pushed through” the door, followed by Esho and that they all ran in. McQuinn testified that they all ran in. MacMurray testified that they “rushed in”.

[90] Ms. Villella testified that it was a confusing situation. She was certain that words were exchanged, that voices were loud, and that both Esho and Jajou were yelling. She said that they were demanding to know where the money was. She saw Jajou pull the hotel phone out of the wall. She testified that Esho was carrying an expandable baton. Villella said that the baton was fully extended when she first saw it and that Esho held it close to her chest. She remembered giving up her wallet to Jajou. She did not see what Jajou did with the wallet, but she testified that Esho had it in his possession when the four intruders left the room. She said that it contained $300 in cash as well as her bank and health cards. She saw MacMurray punch McQuinn in the side of the face. She denied that MacMurray was the only person being aggressive – she said that Mr. Esho was as well.

[91] Ms McQuinn testified that MacMurray slapped her face, pulled her down by the hair, dragged her to the closet where the safe was and said “Open it up, give me the money, bitch”. She said that Esho “whipped out” an expandable baton. When he expanded it, it was two or three feet in length. McQuinn testified that MacMurray, Jajou and Esho were all yelling “where’s the money, give us the money” and that she and Villella were crying. McQuinn said that she opened the safe and showed MacMurray that there was no money. She said that MacMurray then pushed her and “they” – Jajou, MacMurray and Sam – “started rampaging through our belongings” looking for anything of value. She said that MacMurray took her Samsung tablet.

[92] While the others were going through Villella’s belongings, Ms McQuinn testified, Esho took the baton and pressed it against Villella’s breast, “to indicate like ‘don’t fucking move’. When he first whipped it out it was like to indicate that he had it, and…they were going through the stuff, and Jennifer was like ‘don’t’ take that’ or whatever and then he pressed it against her boobs…” She testified that Esho did not hit Villella with the baton, but “he pushed it up to her boobs in a ‘don’t move’ kind of gesture”. McQuinn was asked specifically what Jajou was doing. She answered: “They were just going through stuff, looking through things, going over to end tables and just looking for anything.” Sam “was looking for stuff too”. Throughout the incident, she testified, Esho, Jajou and MacMurray were all acting “tough, angry and rude”.

[93] McQuinn agreed that initially her focus was on MacMurray, who had grabbed her hair and was demanding that she open the safe. She insisted, however, that her attention was not solely on MacMurray, and that she saw that Esho was holding the baton across Villella’s breasts. She said that he appeared to be intent on stopping Villella from moving toward her bag as Jajou and Sam were “rampaging” through it. Meanwhile, she said, MacMurray was going through McQuinn’s bag. She agreed that while MacMurray was holding her head down she could not see what was going on in the room, but she pointed out that she could still hear, and that once the safe was opened MacMurray had pushed her back up to a standing position.

[94] Counsel for Mr. Esho suggested to Ms McQuinn that what really happened was that she had invited all four persons into the room, that MacMurray had suddenly flown into a rage in the course of which she damaged hotel property, that McQuinn was concerned about losing her damage deposit, and accordingly that she made up an account of being robbed by all four individuals. It was suggested that when the front desk of the hotel got the police involved, McQuinn was stuck with a false story. Ms McQuinn denied that suggestion and I reject it. There is no evidence from any witness that the four intruders were invited into the hotel room. The evidence of Villella, MacMurray and McQuinn was that the intruders pushed or rushed in when Villella and McQuinn were tricked into opening the door, and even Mr. Esho agreed that the women did not know that he, MacMurray and Jajou were coming to the hotel before they opened the door to find them on the threshold.

[95] Ms MacMurray testified that as soon as she and the others rushed into the room, Sam unplugged the phones. She said that Villella was in one corner of the room and McQuinn was in the other, and everyone was screaming. She heard someone yelling ‘dump the bags’ ‘look for the Ipad’, ‘look for the phones’, ‘look for money’. She said that Esho was yelling at Villella and that she (MacMurray) was yelling at McQuinn. She said “everyone was just yelling”.

[96] MacMurray said that she hit McQuinn in the face, grabbed her by the hair, dragged her over to the room safe and demanded that she open it. She testified that although McQuinn had said there was no money in the safe, it in fact contained $200, which MacMurray took. MacMurray yelled at Villella, asking why she would take McQuinn away. She said that Villella did not reply.

[97] I have already reviewed what MacMurray said about what Jajou was doing during the incident. In essence, she said that she did not recall seeing him doing anything, but she also said that she was not paying attention to him and that she was “not too sure” what he was doing. She said that Esho had a baton in his hands, which he was waving around. She could not recall what was going on at the time, that it was just Esho trying to look aggressive.

[98] Ms MacMurray testified that the four of them left with the money from the safe, an Ipad, a phone and Villella’s wallet. She testified that it was Esho who had the wallet. Back in the car, she said, Esho looked scared. He expressed a desire to give Villella back her wallet. MacMurray surmised that he was afraid that she was going to call the police. With respect to the $200 that she had taken from the safe, she testified that “we all ended up splitting it”.

[99] The descriptions provided by Villella, McQuinn and MacMurray of what occurred after Sam knocked on the door of the room at the Toronto Hilton vary in some details but they are remarkably consistent in relation to the essence of what happened. They are also, in that respect, inconsistent with the evidence of Mr. Esho. For example:

(i) all three either say or imply that while Sam was knocking on the door the others positioned themselves to avoid being seen;

(ii) all three provided similar accounts of the manner of entry once the door was opened;

(iii) all three testified that the intruders, including both Esho and Jajou, were making shouted demands for money;

(iv) all three testified that Esho had an expandable baton in his hand during the incident, and all three said that he used it: Villella and McQuinn both said that he held it close to Villella’s chest, and MacMurray said that he was waving it about, trying to look aggressive;

(v) all three described the atmosphere in the room during the incident in a similar manner: Villella said that it was confusing, that voices were loud and that people were yelling at her; McQuinn said that she and Villella were crying, that Esho was yelling at Villella, and that the whole situation was traumatic; MacMurray testified that everyone was screaming;

(vi) all three said that someone pulled the phone cord out of the wall, although each attributed that action to a different person;

(vii) all three said that the intruders stole things from the room: Villella testified that her wallet was taken by Jajou and that it ended up with Esho; McQuinn did not see Villella’s wallet being taken, but she said that MacMurray took her Samsung tablet; MacMurray said that when they left, Esho had Villella’s wallet;

(viii) all three said that from entry to exit the incident lasted only a matter of minutes;

(ix) all three described MacMurray as the most aggressive of the intruders, but all of them described the others as acting aggressively as well;

(x) both Villella and McQuinn described Jajou as being actively involved in the demands and the search for money and valuables. While MacMurray testified that she did not see Jajou do anything, she also said that she was not paying attention to him and that she was “not too sure” what he was doing.

[100] As I said earlier, even if I did not have the benefit of the testimony of Villella, McQuinn and MacMurray I would have concluded that Mr. Esho’s version of the events at the Toronto Hilton was untrue. Not only do I not believe his minimization of his role in the incident, his testimony does not leave me with a reasonable doubt as to whether the version of events he described occurred. Rejection of a defendant’s exculpatory testimony does not mean that he must be guilty. In order to find either of the defendants guilty I must be satisfied beyond a reasonable doubt on the basis of the evidence that I do accept that one or the other or both are guilty. The burden is on the Crown, not on them.

[101] I have noted on more than one occasion the need to be cautious before relying on Ms. MacMurray’s evidence. Among the many reasons for caution is the fact that on her own evidence she played a central role in the events that occurred in Villella and McQuinn’s room. Insofar as she inculpates either defendant, it would be dangerous to rely on her evidence. In fairness, it should be said that all charges against her, whether arising out the matter before the court or otherwise, were completely disposed of prior to her testifying in this trial. In relation to those charges, her uncontradicted evidence was that there was no ‘deal’ for favorable treatment in return for her testimony in this trial. It bears repeating that counsel for Jajou took the position that she had been ‘brutally honest’ in her testimony about the events that occurred at the Toronto Hilton. As is apparent from my summary of the evidence given by the Crown witnesses about what happened in the hotel room that evening, there is considerable evidence independent of MacMurray that provides reassurance that her evidence on material matters can be trusted.

(ix) The events of December 23

[102] Ms MacMurray testified that within a week of the events at the Toronto Hilton, she and Jajou were together at the Fairmont Hotel in Toronto, where MacMurray was working again in the sex trade. She testified that they had two rooms: one was for her to see clients, and the other was for her and Jajou. She was asked “did you see [Jajou] in the company of any other girls?” She said that she did, at the Fairmont Hotel: “There was a girl in a room and me and her switched names under the room name so I could take over her room. I don’t know who she is. It was the first time meeting her.” She was asked why she made the switch, and said that the other girl was leaving “and it just would save me money from getting another room.” She said that it was Jajou who made the suggestion.

[103] On the evening of December 23, a large number of police officers attended at the Fairmont Hotel and arrested MacMurray and Jajou. Ms MacMurray testified that she was seriously mistreated by one of the officers who was involved in her arrest, and that she was threatened with physical harm if she did not co-operate and provide a statement. It was suggested by counsel for Esho that as a result of that threat she told the officers what they wanted to hear and that she is sticking by that story now because she is afraid of being charged with obstructing justice or some similar offence. She denied that. She stood by the truth of the account she gave here in court and in particular by her description of Mr. Esho’s use of the baton in the course of the robbery.

D. The Charge of Robbery

[104] The defendants are jointly charged that on or about the 17^th^ day of December in the year 2014, at the City of Toronto, they did steal from Jennifer Villella while armed with an offensive weapon, contrary to s. 343(d) of the Criminal Code.

(i) re Fadi Esho

[105] I have no doubt that the confrontation in the Toronto Hilton hotel room unfolded in the manner that the three Crown witnesses described, that both defendants were active participants in those events, that Mr. Esho was armed with an expandable baton which he brandished and used to intimidate the victims, and that money or valuables were stolen from both of them. In particular, I am satisfied beyond a reasonable doubt that, as Villella testified and MacMurray confirmed, Mr. Esho left the room with Villella’s wallet. I am also satisfied that notwithstanding his consumption of drugs and alcohol Mr. Esho had the intention required to make the taking of the wallet a theft, and to make the baton an offensive weapon. Thus, I am satisfied that Mr. Esho stole from Ms Villella while armed with an offensive weapon as charged in count two of the indictment. Accordingly, he is found guilty on that count.

(ii) re Yousif Jajou

[106] I am satisfied that Mr. Jajou actively participated in the robbery in the manner described by Ms. Villella and Ms McQuinn. I am satisfied that he took Villella’s wallet and that he handed it to Mr. Esho. The issue that remains is whether he had the intent to steal, whether he joined in a common purpose to steal, and whether at the time the common purpose was formed or while it was being carried out he knew that one of the other parties to it was armed with an offensive weapon. Counsel for Mr. Jajou submits that in light of the evidence of Mr. Jajou’s intoxicated state there is reasonable doubt with respect to all of those questions.

[107] To state the obvious, intoxication that merely causes a person to cast off restraint or to act in a manner that he would not have acted if sober is not an excuse for committing any crime if the person had the state of mind required for the offence. The state of mind that must be proved in relation to stealing is neither complicated nor sophisticated. In essence it requires proof that the defendant took another person’s property knowing that he was not entitled to take it, with intent to deprive the other person of the property either temporarily or permanently.

[108] In deciding whether Mr. Jajou had that state of mind, all of the relevant evidence must be considered. The relevant evidence includes not only the evidence about Jajou’s consumption of alcohol and cocaine that evening but also the evidence in relation to his words and conduct before, at the time of and after the incident at the Toronto Hilton.

Jajou’s conduct before the incident

[109] Jajou’s conduct before his entry into Villella and McQuinn’s room at the Toronto Hilton shows him to have been acting in a purposeful fashion to retaliate for what he, MacMurray and Esho all regarded as disrespect.

[110] The evidence of MacMurray was that all three of them were “pissed off” at McQuinn and Villella for going into business on their own. I am satisfied that Jajou’s anger was not based on the mere fact that he was MacMurray’s boyfriend; as I will expand upon in relation to count one, he was angry because he was involved in MacMurray’s business as a sex trade worker. MacMurray testified that as a result of their anger, the three of them hatched a plan to confront Villella and McQuinn and that together with Sam they travelled from Mississauga to downtown Toronto to carry it out. There is nothing in MacMurray’s evidence concerning the formation of the plan or the departure from Mississauga that suggests that Jajou did not have an intention to pursue the plan.

[111] The video security system at the Toronto Hilton captured images of Jajou, Esho, MacMurray and Sam coming into the hotel, walking to the elevators, getting onto an elevator prior to the incident, getting off an elevator after the incident, exiting from the hotel and sprinting across University Avenue. The value of those images in relation to an assessment of sobriety is limited, but it can be said that there is nothing in them that suggests impairment of the ability of any of the four individuals to walk or run in a normal fashion. None of them appears to be any worse for wear than any of the others.

[112] Mr. Jajou was in the stairwell with the others when the discussion occurred with respect to stealing money and valuables from Villella and McQuinn. Ms MacMurray did not suggest that Jajou was not a participant in that discussion. Once the plan was finalized and the room number was obtained, he proceeded with the others to the hallway outside the women’s door and he hid with them while Sam knocked. As soon as the door was opened, he rushed inside with the others.

Jajou’s conduct at the time of the incident

[113] I have already set forth my findings in relation to Jajou’s conduct after he rushed into the room. He was one of the persons shouting “where’s the money”. He was one of the persons rummaging through Villella’s belongings. He was the one who took Villella’s wallet and gave it Esho. He was one of the persons who was acting ‘tough, angry and rude”.

[114] Esho testified that Jajou appeared to be in shock and that he was non-responsive when Esho told him to tell MacMurray to stop assaulting McQuinn. As I have said several times, Esho was not a credible witness. Counsel for Jajou relies more heavily on MacMurray’s evidence that Jajou was standing in the centre of the room and that she did not see him do anything. As I have said, however, MacMurray made it clear that she was not paying attention to what Jajou was doing.

[115] The evidence is that the baton was whipped out by Esho early in the robbery, that it was being waved around, and that it was being used to prevent Ms Villella from attempting to stop Jajou and Sam from going through her belongings. I have no doubt that at least by that point Jajou was aware, notwithstanding the influence of drugs and alcohol, that Esho was armed with the baton. Nonetheless he continued to participate in the theft.

Jajou’s conduct after the incident

[116] Upon departing from the hotel, Jajou joined with the other three in breaking into a sprint across University Avenue. He and MacMurray were driven back to the Mississauga Hilton where, in the middle of the night, they checked out and proceeded to a different hotel to rent a room. There is nothing in MacMurray’s evidence that suggests that Jajou was not a full participant in making the decisions to do those things.

Conclusions re Jajou

[117] Mr. Jajou may have been under the influence of drugs and alcohol at the time of the incident at the Toronto Hilton but I am satisfied beyond a reasonable doubt that this did not prevent him from forming an intention to steal from Villella and McQuinn or from joining in a common purpose to carry out that intention. Whether or not he knew prior to entering the hotel room that Esho was armed with the expandable baton, I have no doubt that he was aware of it while the robbery was in progress and that he nonetheless continued to participate in the robbery. Mr. Jajou is accordingly found guilty of the count of robbery.

E. Obtaining a Material Benefit from Sexual Services

(i) The Applicable Principles

[118] The defendants are charged, pursuant to s. 286.2(1) of the Criminal Code, that they “did receive a financial or other material benefit, knowing that it was obtained by or derived directly or indirectly from the commission of an offence under s. 286.1(1)…”

[119] Sections 286.1 and 286.2 were enacted by S.C. 2014, c. 25, s. 20, and came into force on December 6, 2014.

[120] Section 286.1(1) makes it an offence to obtain for consideration the sexual services of a person. The Code does not criminalize the provision of such services. In other words, with respect to an act of prostitution, the prostitute does not commit an offence but the customer does.

[121] Section 286.2 provides, in part, as follows:

286.2 (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 subsection 286.1(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

(3) For the purposes of subsections (1) and (2), evidence that a person lives with or is habitually in the company of a person who offers or provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services.

(4) Subject to subsection (5), subsections (1) and (2) do not apply to a person who receives the benefit

(a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived;

(b) as a result of a legal or moral obligation of the person from whose sexual services the benefit is derived;

(c) in consideration for a service or good that they offer, on the same terms and conditions, to the general public; or

(d) in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is derived, if they did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good.

[122] Section 286.2(1) was enacted to replace what was formerly s. 212(1)(j) of the Code, which made it an offence to live “wholly or in part on the avails of prostitution of another person”. The purpose of Parliament in enacting the former provision was to target persons who exploit prostitutes and live parasitically from their earnings.[^2] In Attorney General (Canada) v. Bedford,[^3] the Supreme Court held that s. 212(1)(j) was overly broad in that it was capable of capturing conduct that was unrelated to the goal of preventing exploitation. For example, it could include within its reach anyone involved in any kind of business with a prostitute.[^4] The stated purpose of S.C. 2014, c. 25, set forth in its title, was “to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford…” It is a reasonable inference that Parliament’s intention in enacting s. 286.2(1) was not to abandon the goal of protecting prostitutes from parasitic behaviour but rather to narrow the range of prohibited conduct to behaviour that was truly exploitative. That conclusion draws support from the Preamble to the amending Act, which stated, in part:

Whereas the Parliament of Canada has grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it;

Whereas it is important to continue to denounce and prohibit the procurement of persons for the purpose of prostitution and the development of economic interests in the exploitation of the prostitution of others as well as the commercialization and institutionalization of prostitution.

[emphasis added]

[123] The scope of s. 286.2(1) must be interpreted with Parliament’s purpose in mind and by reading the words chosen to give effect to that purpose in their grammatical and ordinary sense: R. v. Jarvis, 2002 SCC 73, at paragraph 77. Parliament has not prohibited the receipt of anything at all from a prostitute, if it is derived directly or indirectly from the provision of sexual services; what it has prohibited is the receipt of a benefit. The word “benefit” is not defined in the Criminal Code. In its ordinary sense, a benefit is an advantage or profit gained from something. Generally speaking, the receipt of something of value from someone else will be a “benefit”, but not always. If, for example, a person who has borrowed $100 from a friend pays it back without interest a week later, the friend could not be said to have gained an advantage or made a profit. The repayment would not amount to the receipt of a benefit. And if the person who borrowed the money was a prostitute and repaid the loan with earnings from prostitution the person who was repaid would not, in my opinion, have received “a financial or other material benefit… that [was] derived directly or indirectly” from a prostitution offence. Parliament’s focus on the receipt of benefits is consistent with the purpose underlying both that provision and the former s. 212(1)(j), namely to target parasitic behaviour.

[124] It is open to the prosecution to establish that a person has received a prohibited benefit in one of two ways: by adducing evidence of each of the essential elements of s. 286.2(1), or by employing the presumption in s. 286.2(3). If the Crown succeeds in bringing a defendant within the scope of s. 286.2(1) by either of those routes, the defendant is liable to conviction unless he or she falls within one of the exemptions set forth in s. 286.2(4). One of the exemptions is for persons who receive a benefit “in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived.” It is important to recognize that ss. (4) does not define which receipts will constitute benefits for the purpose of ss. (1); rather ss. (4) defines which benefits under ss. (1) will not attract criminal liability. For example, the person who has loaned $100 to a friend who repays it with funds earned through prostitution will not fall within any of the exceptions set forth in ss. (4) but will nonetheless not commit an offence unless the repayment can be characterized as a benefit under ss. (1).

(ii) Application to this case

(a) re Fadi Esho

[125] I am satisfied that Mr. Esho brought Ms Villella to the Mississauga Hilton on December 15, 2014 and booked a room with the intention that she would perform sexual services with other persons for money. I am also satisfied that the purpose of the outcall that occurred that night was for Villella and McQuinn to provide sexual services to clients and that Mr. Esho knew that this was the purpose. Had Ms Villella provided those services and received money for them an offence of obtaining sexual services for consideration contrary to s. 286.1(1) would have occurred. Had Ms Villella shared that money with Mr. Esho, he would have received a financial benefit from that offence and he would have committed an offence under s. 286.2(1).

[126] However, the testimony of both Villella and McQuinn is that no sexual services were in fact provided on the outcall. There is no evidence of any other occasion when Villella provided sexual services for money and thus there is no evidence that she was involved in any interaction that gave rise to an offence under s. 286.1(1). Accordingly, there is no evidence that Mr. Esho received a financial or other material benefit from any sexual activity involving Ms Villella. I have found as a fact that Esho stole Ms Villella’s wallet, which contained $300, but there is no evidence as to how she came into possession of that money and in particular there is no evidence that she earned it in the sex trade. Sage MacMurray testified that she took $200 from the safe in the Toronto Hilton hotel room and that it was split with Jajou and Esho after the robbery, but there is no evidence with respect to whose money that was or that it had had been earned from prostitution.

[127] The Crown submitted that Mr. Esho should nonetheless be found guilty on the basis that he derived material benefits from Sage MacMurray’s earnings as a prostitute in her own right and as a pimp for Stefanie McQuinn. The Crown submitted that he received those benefits when he shared in the cocaine and alcohol that was provided by MacMurray.

[128] The evidence to support that theory is sparse. Mr. Esho testified that there were occasions when he would get together with MacMurray and Jajou and alcohol and/or drugs would be consumed. He testified that sometimes he purchased those things, sometimes Jajou purchased them, and sometimes MacMurray purchased them. It is not clear whether he was talking about occasions before or after December 6, 2014, which is significant because s. 286.2(1) was not in force prior to that date. With respect to the evenings of December 15 and 16, MacMurray testified that she, Jajou and Esho were drinking her vodka. She testified that cocaine was being consumed on December 16, although she did not recall if she had purchased it. Esho testified that both cocaine and vodka were being consumed on both nights. He had not purchased those things and he did not know who did. The consumption continued in the car on the way to the Hilton and in the stairwell. MacMurray and Jajou had not gone down to the car at the same time as Esho and Sam. Esho said that they came down later with alcohol and cocaine. The inference I would draw is that the cocaine and alcohol consumed in the car was that of MacMurray and/or Jajou.

[129] Assuming that Sage MacMurray had not only paid for the vodka that was consumed on both December 15 and 16 but also that she paid for at least some of the cocaine, the evidence is insufficient to establish that by sharing in those things Mr. Esho received a “benefit” within the meaning of s. 286.2(1) of the Code. As indicated above, proof of the receipt of a benefit requires proof of the receipt of something in the nature of an advantage or profit. My understanding of the evidence concerning the relationship that Mr. Esho had with MacMurray and Jajou is that one day he might supply alcohol and or drugs for their get-togethers and the next day one of them might do so. It was a form of social sharing not unlike taking turns to buy rounds at a bar. It was meant to be a zero sum exercise among friends. No one was meant to gain an advantage, make a profit or come out ahead. Esho’s relationship with MacMurray was not exploitative or parasitic. The weight of the evidence is that he had very little to do with her at all. I have not forgotten her testimony that both Jajou and Esho pressured her to recruit women to become prostitutes, but when that occurred, in what circumstances, and exactly what was said was never developed in the evidence.

[130] The Crown has failed to prove that by sharing in Sage MacMurray’s vodka or cocaine Mr. Esho received a benefit, directly or indirectly, from her earnings from prostitution. He is therefore found not guilty on count one in the indictment.

(b) re Yousif Jajou

[131] Stephanie McQuinn testified that that when she was performing duos with the woman described in the evidence as “the blonde”, Mr. Jajou would sometimes collect the payment from the room safe. Her evidence in that respect is capable of establishing that he received a financial benefit from the offence of obtaining sexual services for consideration, and thus it is capable of establishing that he committed the offence charged in count one. However, it is only capable of doing so if it is established that the duos occurred and the money was collected on or after December 6, 2014, when the provisions of the Criminal Code creating those offences came into force.

[132] The significance of the date only emerged after all of the evidence was in. No one had attempted to tie the issue down when Ms McQuinn testified. At one point in her testimony, she said that the duos occurred a few days before December 15. However, at other points she suggested that they might have occurred closer to the beginning of the month. After reviewing all of the relevant references in her testimony I am unable to make a finding as to whether the duos, and Mr. Jajou’s collection of the payments for them, occurred before or after December 6.

[133] In support of its case against Mr. Jajou, Crown counsel sought to invoke the presumption in s, 286.2(3), which provides that “evidence that a person lives with or is habitually in the company of a person who…provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services”. There is no dispute that throughout the time period set forth in the indictment Sage MacMurray was providing sexual services for consideration and there is substantial evidence that Jajou was habitually in her company. However, there is also evidence to the contrary of the presumption, namely the testimony of MacMurray that in the relevant time period she was not sharing her earnings with Jajou, that he no longer had anything to do with her work in the sex trade, and that they mutually contributed to the expenses of their lifestyle, such as the cost of cocaine and alcohol. Accordingly, the Crown cannot rely on the presumption.

[134] Where the statutory presumption is unavailable, the Crown must prove its case in the usual manner, on the basis of all of the evidence. In that respect, Crown counsel pointed to the evidence of MacMurray that she and Jajou would share the cost of hotel rooms, meals, alcohol and drugs. Counsel for Jajou submitted that sharing expenses of that kind with a spouse, roommate or significant other does not necessarily amount to the provision of a financial or material benefit, even if that person earns their living through prostitution. Something more is required.

[135] While I agree that something more is required, there is something more in this case. The evidence shows that Jajou was not merely the boyfriend of a sex trade worker; rather, he was involved in the business with her in circumstances that lead inexorably to the conclusion that he was receiving a financial or other material benefit from her earnings. The circumstances that support that conclusion include the following:

(i) Throughout the time period set forth in the indictment Sage MacMurray was providing sexual services for consideration and Mr. Jajou was habitually in her company. The fact that those circumstances do not trigger the statutory presumption that he was receiving a benefit from her prostitution (because of the presence of evidence to the contrary) does not make them irrelevant to the question of whether he was receiving such a benefit.

(ii) The unchallenged evidence of Ms MacMurray is that Mr. Jajou recruited her to become a prostitute. She testified that she began doing sex work in March 2014 and that he assisted her in setting up the business, showing her how do create websites to advertise her services and how to deal with clients. In return, he received 50% of her earnings.

(iii) Mr. Jajou continued to be a fifty percent partner in the business for six months, until approximately September 2014. At that point, Ms MacMurray said, she began working independently of him.

(iv) MacMurray testified that Jajou had encouraged her to recruit others into the business:

Q. You told my friend when asked about how many girls you targeted apart from Stefanie that you could not remember how many. My question is did you target girls on your own initiative or did anyone suggest or help?

A. Mostly on my own. I am sure there was pressure towards it

A. There was definitely pressure to…or persuasiveness…

Q. Where did the pressure or persuasiveness come from?

A. From the men, the guys..

Q And who were the guys?

A. Ben [Esho] and Yousif [Jajou].

(v) Stefanie McQuinn testified that when she came for her second session of escorting with MacMurray in December 2014, Jajou was waiting in the hotel room with the blonde who was there to perform duos with her. It was McQuinn’s impression that she was working for MacMurray and that the blonde was working for Jajou. She formed that impression in part because both MacMurray and Jajou handled the payments for the duos that were deposited in the room safe.

(vi) When McQuinn and Villella went to the outcall on the evening of December 15, both Jajou and MacMurray accompanied them.

(vii) On December 16, when it became apparent that McQuinn and Villella had not only left the Mississauga hotel but that they had set up their own escort service, MacMurray and Jajou were both ‘pissed off’. MacMurray said that they felt disrespected.

(viii) MacMurray testified that when Jajou learned that McQuinn had left, he said that MacMurray should have received a cut of McQuinn’s earnings, presumably from the balance that was owed for the December 15 outcall.

(ix) Jajou accompanied MacMurray and Esho to the Toronto Hilton for the purpose of confronting McQuinn and Villella about the fact that they had set up their own escort business.

(x) Jajou was a participant in the discussion about stealing money and other valuables from McQuinn and Villella in retaliation for setting up an escort service on their own.

(xi) In the course of the confrontation, Jajou stole Ms Villella’s wallet.

(xii) Within a week of the confrontation at the Toronto Hilton, MacMurray was working as a prostitute in the company of Mr. Jajou at the Fairmont Royal York Hotel in Toronto. Ms MacMurray testified that they had two rooms: one was MacMurray’s ‘work’ room and the other was for her and Jajou.

(xiii) MacMurray was asked whether she saw Mr. Jajou “in the company of any other girls” at the Fairmont Hotel. She said “there was a girl in a room and me and her switched names under the room name so I could take over her room. I don’t know who she is. It was the first time meeting her… She was leaving and it just would save me money from getting another room.” When asked who suggested that she do this she said it was Mr. Jajou.

[136] When those circumstances are considered as a whole, the only reasonable inference is that Mr. Jajou was not merely a person whose girlfriend happened to be a prostitute. I reject Ms MacMurray’s minimization of his involvement in her work as an escort. To one extent or another he was involved from the time he recruited her in early 2014 until they were arrested together while she was working at the Fairmont Royal York on December 23, 2014. He was not only habitually in her presence, he was habitually in her presence while she was working. He encouraged her to recruit others into the business. He accompanied her when one of her recruits – Stefanie McQuinn – was taken to an outcall and he became angry when McQuinn and Villella tried to set up their own escort service. He was a full participant in the plan to retaliate against them for their disloyalty. I reject the suggestion that he was habitually in MacMurray’s presence only because he was her boyfriend. He was clearly involved in her escorting business.

[137] There is no dispute that he and Ms MacMurray shared things that were paid for with her earnings from prostitution – for example, meals, alcohol, drugs and hotel rooms. There is also no doubt that they shared those things both before and after December 6, 2104. She characterized the situation as “what’s mine is his”. As I said earlier, mere social sharing of things that were purchased with monies obtained for the provision of sexual services does not necessarily constitute the receipt of a benefit within the meaning of s. 286.2(1). For that reason, I held that Mr. Esho’s sharing in the drugs and alcohol supplied by MacMurray and Jajou should not be characterized as the receipt of a benefit. The circumstances in which Mr. Jajou shared in those things were different. Unlike Mr. Esho, he was in a relationship with MacMurray that involved a shared lifestyle. Her contribution to the expenses of that lifestyle was an advantage to both of them, and accordingly it amounted to a financial or material benefit.

[138] Receiving a financial or material benefit knowing that it was derived from prostitution is not necessarily an offence. For example, it is not an offence if it was received “in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived.” Thus, the spouse, partner or roommate of a prostitute does not commit an offence under s. 286.2(1) merely because the prostitute’s contribution to rent, food or other expenses came from his or her earnings as a prostitute. That exception does not apply in this case, however. The benefits that Mr. Jajou received were not “in the context of a legitimate living arrangement” that Mr. Jajou had with Sage MacMurray but rather in the context of his involvement with her in the business of providing sexual services for money.

[139] The Crown has proved beyond a reasonable doubt that in the time period covered by the indictment, and specifically after December 6, 2014, Mr. Jajou received material benefits knowing that they were obtained by or derived directly or indirectly from the commission of an offence under s. 286.1(1). Accordingly, Mr. Jajou is found guilty on count one.

F. Fail to Comply With Probation

[140] Mr. Jajou is charged that on or about the 17^th^ day of December in the year 2014, at the City of Toronto, in the Toronto Region, while he was bound by a probation order, he failed to comply with the term of that order that he keep the peace and be of good behaviour, contrary to s. 733.1(1) of the Criminal Code.

[141] As I indicated earlier in these reasons, it is an admitted fact that at the time of the robbery Mr. Jajou was bound by the terms of a probation order requiring him to keep the peace and be of good behavior. By engaging in the robbery, Mr. Jajou breached that term. Accordingly, he is found guilty of the offence of breaching probation.

G. Disposition

[142] For the foregoing reasons, Mr. Esho is found not guilty of count 1 (obtaining a material benefit from sexual services) but guilty of count 2 (robbery).

[143] Mr. Jajou is found guilty of all three counts in the indictment.

MacDonnell, J.

Released: October 20, 2017

[^1]: There is no evidence and there has been no suggestion that Ms Villella and Ms MacMurray had any involvement with each other apart from what occurred on December 15 and 16, 2014, or that they have had contact of any kind since that time. I am satisfied that they have not had any opportunity to collude in relation to their testimony. Accordingly, the evidence of one is capable of providing confirmation for the evidence of the other: see R. v. Mango, 2015 ONCA 111, [2015] O.J. 725, at paragraph 30.

[^2]: R. v. Downey, 1992 109 (SCC), [1992] 2 S.C.R. 10, at page 30

[^3]: 2013 SCC 72

[^4]: at paragraph 142