COURT FILE NO.: 105/16
DATE: 20180531
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – A.D. Defendant
A. Campbell, for the Crown
C. Conron, for the defendant
HEARD: April 16-20 and 23, 2018
RESTRICTION ON PUBLICATION
By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Justice A. K. Mitchell (ORALLY)
Introduction
[1] The identity of the complainant is protected by a publication ban and so will be referred to in these reasons as either C.S. or the complainant. Her mother will be referred to as B.S.
[2] A.D. is charged with 10 offences relating to and arising out of her alleged procurement of C.S. as a prostitute and having committed the offence of human trafficking between March 1, 2015 and July 20, 2015.
[3] Seven of the ten counts on the indictment relate to the Crown’s allegation that Ms. A.D. was engaged in human trafficking which involved recruiting the complainant to work selling sexual services for money; taking the money which the complainant received for those sexual services for her own benefit; procuring the complainant to provide sexual services for money by exerting physical and/or mental control over the complainant and because the complainant is alleged to have a disability, the Crown also alleges the accused was a person in a position of trust and who used that position of trust to counsel the complainant without her consent to provide sexual services.
[4] The balance of the charges relate to discrete incidents of alleged assault. Following the close of the Crown’s case, the Crown acknowledged that the evidence did not support a conviction on count number 4, being assault with a weapon, and that count was withdrawn.
[5] At trial, four police officers testified. The complainant’s mother testified. A former fellow EMDC inmate of Ms. A.D.’ testified. An expert testified as to the extent of C.S.’ disability.
[6] As was her constitutional right, the accused did not testify nor call any evidence.
Evidence of the Complainant
[7] In this case, the Crown alleged that Ms. A.D. forced C.S., a 20 year old woman with an intellectual disability, into prostitution, exercised control over her by threatening her with harm, taking her ODSP monies and earnings from prostitution and taking her cell phone, identification and bank card. Their relationship came to an end when a police officer in London, posing as a customer, responded to an ad relating to C.S. on Backpage.com on July 8, 2015 which ultimately led to the arrest of Ms. A.D. two weeks later.
[8] C.S. met the accused in the summer of 2014 when they were both residing in a rooming house located in London Ontario. At the time of their meeting, the complainant was 20 years of age and the accused was 40 years of age. Before moving into the rooming house, C.S. had been residing on her own with her cousin but that situation ended abruptly and C.S. was forced to find accommodation elsewhere. During the summer of 2014, the accused was working as a prostitute and the complainant was unemployed, receiving ODSP funding. She was also pregnant with her second child. C.S. and Ms. A.D. struck up a close friendship during their time at the rooming house.
[9] In January 2015, C.S. moved to a facility in St. Thomas called either “Second Chance” or “Fresh Start,” where she resided until she gave birth to her son. The baby was apprehended by CAS soon after his birth and placed in the care of the complainant’s brother and sister-in-law. The complainant’s daughter had earlier been placed in their care.
[10] In March 2015, C.S. moved in with her sister, V., who she had not seen in four years. V. and her husband resided in Hamilton Ontario. This arrangement was short-lived and C.S. was asked to leave so rather than returning to London, the complainant asked the accused if she could move in with her. At the time, the accused was residing in an apartment in Brampton Ontario where C.S. had earlier helped Ms. A.D. move with her pets, including the complainant’s cat. Whether at or around the same time or shortly thereafter, another young woman aged 18 years, who was referred to throughout the trial as “Soup” and whose legal name is S.M., moved in with the accused and C.S.
[11] At this time, the complainant was receiving $1,098 monthly from the Government under its Ontario Disability Support Program. After moving to Hamilton, the complainant, on her own accord, changed payment of her ODSP from direct deposit into a joint account maintained by the complainant and her mother, to a cheque delivered to the accused’s mother’s home address. The accused’s mother was referred to throughout the trial as “mommy”. Her legal name is G.H..
[12] C.S. testified that within two weeks of moving in with the accused and Ms. S.M. she was told she had to be a prostitute. C.S. says that the accused said “you either work, or you don’t get to live here.” She said that the accused explained prostitution to her and told her that she had no choice in the matter. More specifically, she was required to do whatever was advertised in the Backpage.com ad – she testified that was: “blow jobs, bare back, anal, whatever.” C.S. claimed she had never done stuff like that before and that she was “always the type of girl who didn’t get into trouble.”
[13] C.S. said that around this same time the accused took her phone to post ads on Backpage.com and refused to allow C.S. access to her phone. C.S. said that Ms. A.D. demanded the password for her cell phone and she provided it to Ms. A.D. out of fear she would be beaten if she refused.
[14] C.S. claims that Ms. A.D. picked out the clothing she would wear while working, including underwear and baby doll lingerie. C.S. says that Ms. A.D. told her how to pose for the pictures. Ms. A.D. took photos of C.S. wearing black “baby doll’ lingerie which Ms. A.D. had purchased for her. Using these photos, Ms. A.D. posted ads on the website “Backpage.com” soliciting men to purchase sexual services from C.S.
[15] During the months of May and June 2015, the accused, the complainant and Ms. S.M. rented hotel rooms in Mississauga, Windsor and London where all three women engaged in prostitution. CS testified that the first time she engaged in prostitution was approximately a month after moving in with the accused.
[16] C.S. testified that she, Ms. A.D. and Ms. S.M. travelled to Mississauga on a bus. Ms. A.D. paid for the hotel in Mississauga. C.S. recalls that Ms. A.D. and Ms. S.M. left the room leaving her with a customer. She claims they took her cellphone and told her what she had to do. C.S. could not remember whether or not she had sex with the men she met in the hotel room or whether any of the activity in the hotel room was sexual. However, later in her testimony she said that she did recall having sex with some but not others and recalls being forced to go “bare back” that is, engage in sexual intercourse without a condom.
[17] CS says she received payment from the accused in cash and that she tried to save it but every time she tried to save it, the accused took it. She later admitted she was paid 60 percent and that 40 percent was saved by Ms. A.D. to ultimately purchase a home for all three women.
[18] During the material time – March through July 2015 - the complainant’s ODSP cheques were mailed to the accused’s mother at her home address. C.S. paid “mommy” $40 per month for this service. When asked how the accused “took” her ODSP money as alleged, the complainant testified that the accused forced her to give her the money by threatening that she would not give the complainant her cell phone back or would take something else away.
[19] C.S. admitted she was forced to give money to Ms. A.D. only once or twice and because Ms. A.D. needed money because her son was in the hospital. C.S. admitted though that she was responsible for paying her share of the rent, groceries, vet bills and other incidental living expenses while living in Brampton although she did not think it was fair she had to pay for rent at both mommy’s and for the apartment she shared with the accused and Ms. S.M..
[20] In late May 2015, the accused’s boyfriend, Callie, and his friend, J.J., moved into the apartment in Brampton with the accused, Ms. S.M. and the complainant. This was not an ideal living arrangement and tensions flared. At this time, the relationship between the accused and the complainant began to break down. On one occasion following an argument between C.S. and the accused, the complainant fled the apartment and met a man named, Jason, while walking along the street. The accused did not like Jason and did not want C.S. to spend time with him believing he was befriending her to get access to her money.
[21] In late June/early July 2015, the accused’s son was in a motor vehicle accident and the accused and the complainant together with Callie and J. J. went to London, Ontario. Ms. S.M. remained in Brampton. A room was first rented at the Motor Court hotel by C.S. Later, a room was rented at the Days Inn Hotel.
[22] On July 8, 2015, police officer Pottruff, posing as a potential client, responded to an ad on Backpage.com. He asked her if she wanted the protection of police. She refused any assistance at that time.
[23] The following day the police re-attended at the hotel and observed the complainant walking across the parking lot of the hotel. They spoke with the complainant again and directed her to remain at the police vehicle while they went to room 236 to further investigate the matter. Upon returning to the vehicle 30 minutes later, the complainant asked police to take her to her mother’s home.
[24] After interviewing the complainant, these charges were laid against Ms. A.D. on July 23, 2015.
[25] An extraction report of the data on the complainant’s cell phone was prepared by police for purposes of the trial. A significant amount of time was spent by both Crown counsel and defence counsel having the complainant review the contents of this report. The complainant identified various individuals from the photographs and acknowledged authoring numerous messages and postings contained in the extraction report.
[26] C.S. testified as to the first incident of assault. She said that the accused hit her with an open palm in downtown Toronto as they were walking down the street because she and Ms. S.M. had decided to leave the group. At first C.S. said that she was hit when no one else was looking and then later testified that in fact there were three or four other people present who saw the slap but did not care. She said Ms. A.D. told her that is what she deserved.
[27] C.S. testified to a second incident of assault which she claimed occurred in the Brampton apartment on June 30, 2015. She said she was on her phone and that the accused wanted her to get off the phone and to go to sleep. C.S. testified that Ms. A.D. began hitting and biting C.S. and pinning her down rendering her unable to move. C.S. claimed that Ms. A.D. bit her on her forehead. In response, C.S. told Ms. A.D. that “she was gone”. C.S. admits to kicking Ms. A.D. in the stomach, who was pregnant at the time. C.S. also admitted that Ms. A.D. contacted C.S.’ sister, T., asking her to remove C.S. from the apartment.
Evidence of Other Crown Witnesses
[28] Numerous other witnesses testified in support of the Crown’s case.
PO Nicole Tyhurst
[29] Police Officer Nicole Tyhurst assisted with the investigation. She spoke with Ms. A.D. in the room at the Days Inn on July 9, 2015. Officer Tyhurst estimated this conversation lasted approximately 30 minutes. C.S. was not present during this discussion.
[30] Officer Tyhurst testified that Ms. A.D. was cooperative but became less truthful in response to questions asked by her as the conversation wore on. She said that Ms. A.D. denied that the room was being used for prostitution and was not truthful about her relationship with Callie and J.J. When asked, she denied pimping out anyone. Officer Tyhurst recalls Ms. A.D. being forthcoming about the living situation in Brampton and admitting she lived with C.S. in Brampton. When police were taking C.S. to the police station, Ms. A.D. said to Officer Tyhurst that she cared for C.S. and understood if she had to leave with the police.
[31] Officer Tyhurst reviewed the bank statements for the account into which the monthly ODSP cheques were deposited for the period May 1, 2015 through July 31, 2015. Those statements evidence three deposits of $1,098 each on May 1, 2015, May 29, 2015 and June 30, 2015. Corresponding cash withdrawals of $900, $1,162.50 and $1,040 were made on those dates, respectively.
J.F.
[32] J.F., a former inmate at EMDC, testified as to statements made by Ms. A.D. following her arrest and while both women were in custody in the same dorm over a period of 3-4 days in late July 2015. Ms. J.F. testified that Ms. A.D., who was already known to Ms. J.F., brought up C.S. and said that C.S.’ mother brought her to live with Ms. A.D. in Brampton and that C.S. was not intellectually delayed despite what police were saying. Ms. A.D. told the women in the dorm, including Ms. J.F., that when C.S. was sent to Brampton that she had no income and so she got C.S. working so she could have income as she was not permitted to live with her rent free. Ms. A.D. claimed that she took 60 percent of what the girls made and the girls received 40 percent. She described C.S. as having a speech impediment but no mental disability; however, referred to her as a “retard”.
[33] During cross-examination, Ms. J.F. admitted that she did not like Ms. A.D. and admitted to calling her as a “piece of shit” and described her as being “lost and troubled”. She admitted the comments attributed to Ms. A.D. were made to a larger group and not to Ms. J.F. directly. Ms. J.F. admitted that the stories Ms. A.D. was telling were ridiculous and she was annoyed by Ms. A.D.’s talking. She admitted that she did not know whether any of what Ms. A.D. said was true.
Police Officer Ken Li
[34] Police Officer Ken Li testified. While Ms. A.D., C.S. and Ms. S.M. were in Mississauga working at a motel on June 14, 2015, Officer Li observed them enter a motel room. He had been alerted as part of a broader investigation that an underage girl by the name of Chelsea Woods was working as a prostitute out of the motel. Officer Li spoke with the three women. In response to his request, the women each produced identification to prove they were of age.
[35] While speaking with the women, Officer Li observed C.S. to be naïve and innocent in her responses and, in his view, not at a maturity level to be involved in prostitution. Officer Li did not observe Ms. A.D. to behave in a controlling manner although she did act as the spokesperson for the three women.
[36] Officer Li spoke with C.S. alone to ensure that she was involved in prostitution of her own free will and was not being directed, controlled or coerced in any manner. Officer Li brought C.S. to the police station and along the way they stopped at a TD bank branch where C.S. demonstrated to him that she had access to her bank account. Officer Li spoke with C.S. for approximately 30 minutes and satisfied himself that she had a level of independence based on the following information supplied by C.S.:
- She confirmed where she was living.
- She had kind words for both Ms. S.M. and Ms. A.D..
- She had her own debit card.
- She told PO Li she worked independently and paid $500 rent plus groceries and cable.
[37] In cross-examination, Officer Li admitted that C.S. had also confirmed to him that :
- She was introduced to prostitution by Ms. S.M..
- Ms. A.D. was helping her out and protecting her.
- Ms. S.M. was responsible for booking the motel room in Mississauga.
- Both Ms. S.M. and Ms. A.D. also worked as prostitutes.
[38] Officer Li testified that C.S. did not strike him as someone in fear and further that she appeared in control of her situation.
B.S.
[39] The complainant’s mother, B.S., testified. She confirmed that the complainant could cook, including that she could use the stove. C.S. also cleaned the house and maintained her personal hygiene. B.S. explained that initially she and the complainant maintained a bank account into which the ODSP payments were direct-deposited. Both signatures were required to withdraw money from the account. B.S. testified that C.S. was reckless with her money and so she would save a portion of each payment and pay a monthly allowance to C.S. B.S. first met the accused in September or October of 2014 and had contact with her off and on thereafter.
[40] After C.S. moved in with the accused in Brampton, B.S. spoke with the accused by phone who assured her that the complainant was safe and that she would give the complainant everything she needs.
[41] Sometime in late June/early July 2015, B.S. was called to attend the rooming house where she met with Ms. A.D. and her daughter. She remembers taking C.S. for dinner and asking her to move home. C.S. assured her she was fine. B.S. did not observe any marks or injuries on C.S. B.S. testified that she was concerned because C.S. advised her she had to pay rent for two places.
[42] B.S. confirmed that C.S. often bought clothes and toys for her children and once transferred money to her account for this purpose.
[43] B.S. contacted the police as she was worried for her daughter’s safety. The police advised that there was nothing they could do to assist because the complainant was 18 years of age - if C.S. required police assistance, she had to seek same directly.
[44] B.S. denies knowing that the accused was a prostitute when she first met her. She admitted in cross-examination that she suspected C.S. was engaged in prostitution when they met in London for dinner in late June/early July 2015. She also admitted that she gave money to C.S. when she moved to Brampton Ms. A.D.
[45] B.S. admitted when they met at the rooming house in June/July 2015 that Ms. A.D. made derogatory references to C.S. prostituting herself and that Ms. A.D. asked B.S. to take C.S home with her, but that C.S. refused leave.
PO Pottruff
[46] Police officer James Pottruff testified. In July 2015, Officer Pottruff was assigned to investigate human trafficking. While on the Backpage.com website he spotted an advertisement which he suspected related to an underage person. The advertisement had the heading “New Ginger baby here. Pls im gone dont text family in hospital phones off…wait till next week – 18.” This ad was posted on July 4, 2015 and its contents read as follows:
Hi. I am a 5ft 2 medium built with A 34 and a nice bootie. I a mature college student, so pls no games Race isnt a issue I am polite sub missive and dont rush. No fetishes Just the girl friend and nomal ways pls thank u If interested me$$age for info Thanks for checking my ad. --- chelsea woods ---
[47] A similar ad was posted on July 9, 2015. Officer Pottruff sent a text to the number in the ad and received a response. He coordinated a meeting time at the Days Inn and was provided with a room number. When he attended at the hotel room he was greeted at the door by the complainant wrapped in a towel. She was alone in the room. C.S. produced an OHIP card in her name confirming she was 20 years of age. Officer Pottruff spoke with C.S. for 90 minutes during which time he advised her of the risks associated with prostitution and offered to remove her from the environment and get her out of the business. The complainant refused his offer. He provided his name and contact number to the complainant which she in turn provided to the accused.
[48] Based on the quality of her answers, Officer Pottruff believed the complainant to be operating at a level not consistent with her age. He believed she was not fully aware of the situation she was in and found her to be extremely naïve.
[49] After leaving the hotel, Officer Pottruff received a telephone call on his cell phone from the accused. Ms. A.D. was upset with him for speaking with the complainant. Ms. A.D. advised him she at the hospital tending to her son. She ended the call by hanging up on him.
[50] Officer Pottruff returned to the Days Inn the next day to further investigate the situation involving the complainant. When he arrived at the hotel he observed the complainant walking across the parking lot. He spoke with C.S. who advised that she was out for a walk and had purchased food at a Subway restaurant and was returning for a straw. C.S. advised him that the accused was in the hotel room. He directed that C.S. wait beside the police vehicle while he spoke with Ms. A.D.
[51] When he returned approximately 30 minutes later, C.S. remained waiting by the vehicle. He again explained his concerns to her. This time she said she wanted to leave with him and contact her mother. He collected her personal items some of which were brought to the hotel lobby by Ms. A.D. He recalled Ms. A.D. telling the complainant she was her friend. PC Pottruff then took the complainant to the police station where her mother was called. B.S. attended the station a short time later.
[52] Officer Pottruff admitted during cross-examination that he had been involved in an investigation involving Ms. A.D. a few years prior. He had been successful in getting a woman out of prostitution but no criminal charges were laid against Ms. A.D.
[53] He further admitted that during their conversation on July 8, 2015 the complainant advised him that she was not being trafficked, she provided her definition of a pimp and told him that Ms. A.D. was helping her get better at prostitution. C.S. also told him that she had sold sexual services to friends once or twice before.
PC Brown
[54] Police officer Stuart Brown assisted Officer Pottruff with the investigation on July 8, 2015. When he attended at the hotel room he observed alcohol in the room and toiletries in the bathroom. After speaking with the complainant he too found her to be naïve and estimated her cognitive function at the level of an 8 to 11-year-old.
[55] The complainant told PC Brown that she worked as a prostitute with Ms. A.D.’ help. He recalls C.S. repeatedly turning down offers of help. He does not recall C.S. mentioning that she was forced to provide sexual services.
[56] That is a summary of the witness testimony given at the trial. I pause at this juncture to note that there was no evidence presented at trial to suggest that Ms. A.D. similarly forced Ms. S.M. to engage in prostitution despite Ms. S.M. also residing in the apartment, being younger in age than C.S. and also working as a prostitute. Based on the often conflicting testimony of C.S., it could be reasonably inferred from the evidence that Ms. S.M. was the mastermind behind the alleged trafficking operation, not Ms. A.D.. Ms. S.M. was not called to testify in support of the Crown’s case, and I draw a negative inference from the failure of the Crown to call this witness in the circumstances of this case.
Legal Framework
[57] The indictment contains 10 counts. Seven of these counts deal with offences arising out of the relationship between Ms. A.D. and C.S. during the period March 1, 2015 and July 20, 2015. Those allegations are:
(a) that Ms. A.D., being a person in a position of trust or authority with respect to the complainant, being a person with a mental disability, for a sexual purpose, did counsel the complainant without her consent to touch directly or indirectly with a part of her body and the bodies of several male adults, contrary to s. 153.1(1.1) of the Code;
(b) that Ms. A.D. confined the complainant without lawful authority contrary to s. 279(2) of the Code;
(c) that Ms. A.D. trafficked in persons by exercising control over the movements of C.S. for the purpose of exploiting her or facilitating her exploitation contrary to s. 279.01(1), of the Code;
(d) that Ms. A.D. received a financial or other material benefit from her exercise of control over C.S. knowing it resulted from the commission of an offence under s. 279.01(1), contrary to s. 279.02 of the Code;
(e) that Ms. A.D. recruited, held, concealed or harboured C.S. to become a prostitute contrary to s. 286.3(1) of the Code;
(f) that Ms. A.D. procured C.S. to become a prostitute contrary to s. 286.3(1) of the Code;
(g) that Ms. A.D. exercised control, direction or influence over the movements of C.S. for the purpose of facilitating her engaging in prostitution contrary to s. 286.3(1) of the Code; and
(h) that Ms. A.D. assaulted C.S. on two occasions contrary to s. 266 of the Code.
[58] In R. v. Kiared[^1] the court held that to obtain a conviction under s. 153.1(1), the Crown must establish that: i) the victim was a person with a mental or physical disability; ii) that the accused was in a position of trust or authority toward the complainant; and iii) that the accused counselled or incited the complainant to touch the accused’s or another person’s body for a sexual purpose without that person’s consent.[^2] The key to proving guilt is establishing that the complainant was a person with a mental or physical disability and that the accused was in a position of trust relative to the complainant. In R. v. Lanthier the court held that mental disability describes a condition which is apparent to a layperson… No expert assistance is required.[^3]
[59] The Supreme Court of Canada in R. v. Audet[^4] delineated the three categories of individuals who stand in a position of trust and authority as: i) individuals in a position of trust; ii) individuals in a position of authority; and iii) individuals with whom the complainant is in a relationship of dependency.[^5] Further, the court in Audet stated that the meaning of “position of authority” is intended to direct analysis towards the nature of the relationship between the accused and the complainant and, “must not be restricted to cases in which the relationship of authority stems from a role of the accused but must extend to any relationship in which the accused actually exercises such a power”.[^6]
[60] Unlike s. 153(1) which deals with the offence of sexual exploitation of a young person, s. 153.1(1.1) which deals with the offence of sexual exploitation of a person with a disability, requires the Crown to also prove beyond a reasonable doubt that the person with a disability did not consent to the sexual activity in question.
[61] Section 153.1(2) defines “consent” as the voluntary agreement of the complainant to engage in the sexual activity in question. Pursuant to s. 153.1(3) of the Code no consent is obtained if the complainant is incapable of consenting to the activity or the accused counsels or incites the complainant to engage in the activity by abusing a position of trust, power or authority.
[62] The essential elements of the offence of human trafficking under s. 279.01 include:
- the accused having recruited the complainant whereby the accused exercised control, direction or influence over the complainant; and
- for the purpose of exploiting the complainant by causing the complainant to offer a service and the complainant reasonably believing that her safety would be threatened if she failed to provide the service.
[63] In R. v. S.[^7] the court held that the offence of human trafficking can be established where the accused i) directs or influences the movement of the complainant for the purpose of exploiting them; ii) transports the complainant for the purpose of exploiting them; or iii) harbours a complainant for the purpose of exploiting them.[^8] In R. v. S., the court found that the accused exercised control over the complainant by setting quotas for her earnings as an escort and beating her if she did not receive those earnings. The court found that the complainant only complied with the accused’s demands for fear of being beaten.[^9] Controlling the complainant for the purpose of exploiting the complainant, is key to proving a charge of human trafficking. In R. v. S., the accused did not exercise complete physical control over the complainant for the period specified in the charge but was found to have exercised psychological control over the complainant.
[64] Pursuant to s. 279.04, “exploitation” for the purposes of s. 279.01 to s. 279.03 means causing a person to provide or offer to provide labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause that person to believe that their safety or the safety of a person known to them, would be threatened if they failed to provide, or offer to provide, the labour or service. In determining whether an accused exploits another person, the court may consider, among other factors, whether the accused (a) used or threatened to use force or another form of coercion; (b) used deception; or (c) abused a position of trust, power or authority.[^10]
[65] In R. v. A.A.[^11], the court provided an interpretation of exploitation as that term is defined in s. 279.04 of the Code as follows:
On a straight up reading of this definition of exploitation, three conclusions emerge:
i. the expectation of the specific beliefs engendered by the accused’s conduct must be reasonable, thus introducing an objective element;
ii. the determination of the expectation is to be made on the basis of all the circumstances; and
iii. the person’s safety may not actually be threatened.
In essence, for there to be exploitation, an accused’s conduct must give rise to a reasonable expectation of a particular state of mind in the victim.[^12]
[66] Exploitation is a crime where the accused procures a benefit from the victim by influencing the victim’s state of mind. In R. v. Masoudi[^13], the court expanded on the idea that the accused must influence the victim’s state of mind. The court explained that the accused must have reasonably foreseen that their actions would potentially give rise to a state of fear in the complainant whereby the complainant would acquiesce to the accused’s demand.[^14]
[67] In R. v. A.A., the court held that the Crown must prove that the accused acted with the purpose of exploiting or facilitating the exploitation of the complainant.[^15] In order to establish exploitation, the Crown must prove that the accused acted with the intent to exploit the victim.
[68] To establish guilt under s. 279.02(1) of the Code, the Crown must prove that the accused received a material benefit (financial or otherwise) from trafficking of the complainant with knowledge that the benefits the accused received resulted from the act of trafficking in persons. The material benefit must be derived directly from the offence of trafficking.
[69] To establish guilt pursuant to s. 286.3 of the Code, the Crown must prove the actus reus of the offence in at least one of the three ways established by the court in R. v. Evans[^16] as follows:
(a) by procuring a person to offer or provide sexual services for consideration;
(b) by recruiting, holding, concealing or harbouring a person who offers or provides sexual services for consideration; or
(c) by exercising control, direction or influence over the movements of a person who offers or provides services for consideration.
[70] In Masoudi, the court stated that:
The essential fault element of [the] offence requires that the accused did something prohibited (either as principal or party) for the purpose of inducing the woman to continue to offer her services as a prostitute because, if she did not, negative consequences would be suffered by her.[^17]
[71] The Crown must prove that the accused influenced the complainant’s state of mind by influencing the complainant’s movements or decisions in some way. The act of procuring a complainant to engage in prostitution includes actions of the accused for the purpose of inducing or persuading the complainant to become a prostitute.[^18] The court in Evans acquitted the accused of procuring the complainant to become a prostitute because the court found that the complainant had sought out the accused for the purpose of pursuing sex work.[^19]
[72] The indictment against Ms. A.D. also includes a charge that the accused confined C.S. To establish guilt of this offence, the Crown is required to prove the essential elements of unlawful confinement as laid out in R. v. Bottineau[^20] which are:
(a) the confinement of another person;
(b) the absence of authority for the confinement; and
(c) the intention to confine the other person without lawful authority which involves the restriction of liberty, not the victim’s means of escape.
[73] The court in R. v. Riccardi[^21], provides refinement of the essential element of confinement as: “the Crown is not required to establish that the confinement occurred for the entire time the parties were together, or that there was total physical restraint.” The mens rea component of the offence requires intent on the part of the accused to restrict the movements of the complainant.
[74] Last, the offence of assault requires the Crown prove beyond a reasonable doubt that the accused intended to apply force and did apply force to the complainant and that the complainant did not consent to the application of force.
Assessment of the Evidence of the Complainant in the context of the Totality of the Evidence
[75] The Crown’s case against Ms. A.D. relies almost exclusively on the credibility and reliability of C.S.’ evidence.
[76] Crown counsel urged me to use a different lens when assessing the evidence of C.S. and in particular her ability to recall details of events and conversations. He suggested that I consider her evidence as I would the evidence of a child having her same intellectual age - that is a child of 8-11 years of age.
[77] The standard general instruction to jurors with respect to assessing the evidence of children under 14 years of age, is as follows:
Consider the child’s ability to understand the questions that were asked and to give truthful and accurate answers. Take into account the intelligence and experience of the young witness. Look at whether she understands the duty to tell the truth, and the difference between truth and falsehood. Think about whether any differences in her account of events relate to something important, or only minor details.
Young witnesses do not always have the same ability as adults to recall precise details or to describe events fully and accurately. For this reason, you may choose to regard inconsistencies in their testimony as less significant than they would be if you had noticed them in the testimony of an adult. The important thing is to consider whether deficiencies of this sort mean that the young witness has misconceived the events she described.
[78] Although naïve and lacking in maturity, children are capable of understanding and appreciating the difference between right and wrong and the difference between telling a truth and a lie. It is trite to say that a child is every bit as capable of telling a lie as an adult.
[79] Based on her responses to questions and my observations of her demeanour over the course of two days, I have no doubt that C.S. appreciates and fully understands the difference between a truth and a lie. This was most evident when she became evasive during cross-examination claiming repeatedly she could not remember as various suggestions were put to her by defence counsel. It was clear she had resolved in her mind that it was easier to claim she could not remember, rather than accept the suggestion as the truth.
[80] As I find later in these reasons, C.S. does have an intellectual disability which places her intelligence at the level of a child of between 8 to 11 years of age. However, she is not a child in so far as life experiences are relevant to the assessment. She has had life experiences commensurate with those of an adult her same age. Some latitude must be given to account for her inability to articulate her recollection of events given her intellectual deficits, however, her ability to remember the events themselves should not be affected by her intellectual deficit.
[81] I must confess that I found it difficult at times to follow the testimony of the complainant. At various points in her testimony it was not clear to me whether she had a clear specific recollection of an event or could not remember the event in its entirety. For example when she was asked whether she remembered Ms. S.M. and Ms. A.D. talking about girls marketing their sexual services without last names as having bad reputations, the complainant responded: “I don’t remember that. I don’t remember talking on the phone to set up dates. I don’t remember any of this. I don’t remember any of what went on in Brampton or any of this because I have put it out of my mind. I don’t recall having sex with anyone or giving any blow jobs.” Immediately after her stating all of what she could not remember, she then stated: “I remember [the accused] telling me what to do in the hotel room and what the ad said.”
[82] Another example of her inability to remember material events was her response to a question Crown counsel asked as to the first time she had sex with a man for money. C.S. responded that she remembered it occurred in Mississauga, however she was unable to remember what went on in the room. When asked whether she remembered having sex with the man in the hotel room in Mississauga, C.S. responded: “I don’t remember anything off the top of my head. She repeated she didn’t remember what she did with the three or four men she met over the two days they spent in Mississauga. She testified that she thought it was sexual but it was not clear because she “didn’t want to remember any of it”.
[83] When asked whether she recalled having sex with any of the men during the second time she engaged in prostitution, CS responded: “some of them yes and others no”. She testified that she was forced to have unprotected sex and have anal sex and perform oral sex on these men although on numerous occasions throughout her direct and cross examination she claimed she had no memory of what went on in the hotel room with these men.
[84] Ms. A.D. did not testify but many suggestions as to the accused’s version of events were put to C.S. by defence counsel during cross-examination. Many of these suggestions were accepted by C.S. and by accepting these suggestions she created internal inconsistencies in her evidence which undermined her overall credibility and reliability as a witness. For example:
i) C.S. admitted that both Ms. S.M. and A.D were involved in telling her what to do in the hotel room and that it was Ms. S.M. who explained the words in the Backpage.com ad to her.
ii) She admitted that both Ms. S.M. and Ms. A.D. introduced her to prostitution. In fact, at one point in her testimony, C.S. claimed it was Ms. S.M. who showed her the ropes and got her involved in prostitution.
iii) It was not just Ms. A.D. rather both Ms. A.D. and Ms. S.M. who placed the ads on Backpage.com.
iv) C.S. admitted that when she arrived in Brampton she knew that both Ms. A.D. and Ms. S.M. were working as prostitutes.
v) C.S. admitted that she “kinda remembered” that valuable stuff was not kept in the hotel room when meeting with customers which is why Ms. A.D. took her identification and cell phone when she was meeting with men.
vi) C.S. admitted that everything was fine when it was just her, Ms. A.D. and Ms. S.M. living in the apartment and it was not until Callie and J.J. moved in that things went bad.
vii) The information she provided to Officer Li during her interview satisfied Officer Li that she was working independently and was engaging in prostitution voluntarily and of her own free will.
viii) C.S. admitted that the direct deposit arrangement to the joint bank account maintained by her and her mother was terminated on her initiative and was replaced by physical cheques which were mailed to the accused’s mother. She admitted that the change in manner of payment was done voluntarily and out of a desire to be independent of her mother and was not at the request of or further to the demands of Ms. A.D..
ix) She approached Ms. A.D. to move in with her in Brampton. Ms. A.D. did not approach her as she had originally testified.
x) Although testifying in direct examination that she was required to turn all of her money over to Ms. A.D. including her ODSP cheques, she admitted that she forwarded money to her mother when her mother requested to borrow money.
xi) C.S. admitted that both she and Ms. A.D. had use of “mommy’s” credit card and that Ms. A.D. used her mother’s credit card to post ads online on Backpage.com.
xii) Despite testifying that she was required to turn over her bank card to Ms. A.D. she admitted she maintained her debit card and had access to her bank account. Officer Li testified she was able to withdraw money from her account to her maximum daily limit.
xiii) Although claiming to be in fear of Ms. A.D., she admitted that only she knew the PIN and she refused to provide it to Ms. A.D. when she demanded it.
xiv) She admitted to paying the vet bill when her cat fell off the balcony at an approximate cost of $370. She also paid “mommy” gas to get to and from the vet.
xv) During a July 1, 2015 text exchange with a friend, she claims she is “rich” and boasts about receiving $1,000 per month.
xvi) She admitted to purchasing clothes and toys for her children in June 2015. She admitted to buying her children things they needed and buying birthday and Christmas presents in lieu of payment of child support. Her mother confirmed that the complainant sent her money to buy clothes and toys for the C.S.’ children.
xvii) When asked about her testimony regarding Ms. A.D. taking all of her identification, she admitted she always had in her possession an expired OHIP card because her new health card had been burned in a fire. She admitted that Ms. A.D. was helping her to replace her identification and on one occasion Ms. A.D. contacted a former teacher asking her to warrant C.S.’ identity so she could replace her identification.
xviii) C.S. admitted that she transacted for her own benefit the numerous retail transactions made through her bank account during the period May through July 2015 as evidenced by the bank statements.
xix) C.S. testified that some of the money she earned as a prostitute was used for renting the hotel rooms, purchasing clothing, alcohol and food. She admitted this was similar to the manner in which the money earned by Ms. S.M. and Ms. A.D. was used.
xx) Although testifying that she was forced to do whatever Ms. A.D. wanted, C.S. admitted that restrictions were placed on the sexual services she would provide as stated in the Backpage.com ad after she advised Ms. A.D. she refused to engage in those acts. For example, C.S. would not engage in fetishes and this was reflected in the Backpage.com advertisements.
xxi) She further admitted that it was not until the end of May 2015 after the accused had lost her own phone that Ms. A.D. requested to use her phone. C.S. acknowledged that she maintained regular use of her cell phone after May 2015 and this is evidenced by the extraction report relating to the cell phone.
xxii) The extraction report contains tens upon tens of posted pictures and Facebook messages and text messages to friends and family authored or received and responded to by C.S. during the period April-July 2015 when the complainant claims the accused denied her use of her cell phone.
xxiii) She admitted she also owned a pink baby doll outfit which C.S.’ brother’s friend had purchased for her, which she admitted she enjoyed wearing.
[85] The complainant’s prior sexual history is wholly irrelevant for purposes of assessing the complainant’s credibility and reliability. Simply because she may have engaged voluntarily in prostitution prior to the period in question, does not suggest she was more likely to consent to engaging in prostitution during the period March-July 2015. However, to the extent she denies advising police on July 8, 2015 that she sold sexual services in the past directly undermines her credibility in circumstances where two police officers testified that she advised them of just that.
[86] The testimony of C.S. was rife with internal inconsistencies. On balance and when considered in the context of the totality of the evidence, I find that C.S. was neither particularly credible nor reliable as a witness.
Factual and Legal Findings
Capacity to Consent
[87] As already noted by me in these reasons, the offence under s. 153.1 requires the Crown to prove as one of the essential elements of that offence that C.S. has a disability. In this case, the Crown alleges that C.S. has a mental disability and more specifically an intellectual disability. Rather than rely on the court’s observations of C.S. as she testified and her testimony itself to inform the court’s decision on this essential element of the offence, the Crown called expert evidence on this issue.
[88] Dr. Roseanne Field, a clinical psychologist provided expert testimony on the extent to which C.S. may suffer from a mental disability. Dr. Field testified that the complainant suffers from a mild intellectual disability which was formally diagnosed in 2013 as part of an assessment conducted by Dr. Field in support of the complainant’s application for ODSP. At the time of the assessment, C.S. was 18 years of age and resided in Clinton, Ontario with her mother. Dr. Field administered the Wechsler Adult Intelligence Scale-IV (WAIS-IV) test.
[89] The results of this testing showed that the complainant’s intellectual ability fell at the .3 percentile or mildly deficient range meaning that her intellectual ability is surpassed by 99.7 percent of the population.
[90] Dr. Field diagnosed C.S. with Mild Mental Retardation. The current diagnosis based on these same results is Intellectual Developmental Disorder 317. Dr. Field opined that C.S. was not capable of competing in the regular workforce. Dr. Field acknowledged that her diagnosis and opinions were as at September 27, 2013 and therefore dated. She admitted the situation may have changed since then.
[91] Both the complainant and her mother testified that C.S. has a hearing impairment which was diagnosed at a young age. While testifying, C.S. was not wearing a hearing assist device and she was responsive to all questions asked of her. Rarely did she ask for a question to be repeated.
[92] During her testimony, C.S. presented as a person with an intellectual deficit. Her speech was slow and her word enunciation was poor. She provided simple responses to questions with little detail or explanation. The defendant suggested her presentation was as a result of the complainant’s hearing impairment and not as a result of any mental disability. I do not accept that to be the case and find that the Crown has established beyond a reasonable doubt that C.S. suffers from an intellectual disability.
[93] During closing submissions, Crown counsel asked the court to consider the extent to which C.S.’ intellectual disability affects her ability to provide consent. That is, a preliminary issue requiring determination is whether C.S. was capable of giving her consent to engage in prostitution.
[94] In the circumstances of this case, I note that:
(a) Dr. Field was not asked to conduct a capacity assessment nor provide her opinion with respect to the capacity of C.S. to consent to engaging in prostitution. Dr. Field was retained to assess the complainant’s intellectual functioning in support of an application for ODSP. Her assessment and opinions focussed on and were restricted to whether C.S. was able to manage the demands of a formal work environment.
(b) The evidence establishes that since March 2015 C.S. maintained a bank account in her sole name, she retained possession of the debit card associated with that account, she lived independently of her mother and had for over a year by that time, she paid her share of the rent for the apartment she shared with Ms. A.D. and Ms. S.M., she maintained a cell phone, she cooked, she cared for a pet cat, she maintained social relationships with various friends and family members, she maintained a profile on the dating website “Plenty of Fish”, she maintained a profile on Facebook, she was proficient in texting and making arrangements to get together with friends and family members and to arranging dates with men she met online.
(c) There was no evidence that C.S. was ever the subject of an application for guardian of property or person, let alone that such an order existed.
[95] Adults are presumed to be capable, depending on the type of decision being made, unless there are reasonable grounds to believe otherwise. There is no evidence to support a finding that the complainant was incapable of providing her voluntary agreement to work as a prostitute. I find that the complainant’s emotional and social intellect as opposed to her raw intelligence was at an age appropriate level. She made many lifestyle decisions independently, including where and with whom to live, how she would receive her ODSP payments, what expenses she would pay and how and with whom to engage socially. Officer Li satisfied himself she was behaving independently of the accused. Her many Facebook and text exchanges and posts contained in the extraction report span various topics of a mature nature including, marriage, engaging in sexual acts, consuming alcohol, relationships, finances, friendship, and motherhood. I find that, despite her intellectual disability, the complainant had the capacity to give her consent to work as a prostitute.
Prostitution- Related Offences
[96] The seven prostitution-related offences all have at their core the exercise of some degree of power, domination, control, coercion, manipulation, solicitation exploitation and/or intimidation by the accused of or over the complainant. The elements of these offences overlap to a great degree. To a great extent, the same evidence is necessary to prove guilt for all of these offences. Similarly, a finding that the complainant provided her voluntarily agreement to engage in prostitution will invariably create a reasonable doubt as to the mens rea on the part of the accused necessary to establish guilt for many of the prostitution-related offences.
[97] The Crown argues that the accused exercised control over the complainant, that she directed her movements for the purpose of exploiting her, forcibly confined her and procured her to work as a prostitute.
[98] Considering all of the evidence, I make the following findings:
- I find that the complainant did have access to her ODSP monies and her earnings from prostitution, and that these monies were used for her own personal benefit including living expenses, groceries, vet bills, items for her children, rent and expenses relating to prostitution such as hotel rooms, alcohol, clothing and food.
- I find that while Ms. A.D. did retain a portion of the complainant’s earnings from prostitution it was not for her material benefit but rather to hold as savings towards the purchase of a home for their collective benefit.
- I find that the complainant was not deprived of her identification by Ms. A.D.. The simple fact is that she had only a few pieces of identification to start with. In fact, Ms. A.D. was assisting her in replacing her identification which had been destroyed. To the extent she had identification, she maintained possession of it throughout the period.
- I find that the complainant did have use of her cell phone and was in regular and constant communication with friends and family on Facebook during the material period. Ms. A.D. did have sporadic and regular use of C.S.’ phone with her consent and this use was not exclusive.
- I find that C.S. was free from any physical or psychological constraints and was able to come and go as she pleased. I further find that C.S. was not confined by Ms. A.D. at any time and her movements were not restricted in any manner whatsoever by Ms. A.D.. This finding is supported by the observations of Officer Li and the information supplied by the complainant to him together with the following additional evidence of the complainant which I accept:
- C.S. threatened to move out of the apartment and on at least one occasion, she did leave and on this occasion she met Jason. Ms. A.D. did not pursue her when she left.
- She attended her grandmother’s funeral and the funeral of a friend during the period in question.
- She chose to stay in Brampton when Ms. A.D., Ms. S.M., Callie and J.J. drove to London to purchase a knife.
- She refused to return to her mother’s home when Ms. A.D. called her mother demanding she come get her daughter after an argument.
- She refused to return home to live with her mother when a meeting was held at the rooming house and Ms. A.D. asked that C.S.’ mother take her home.
- C.S. testified that she came to London at the end of June to visit with friends and see her children while Ms. A.D. tended to her son who was in the hospital with critical injuries. There is no evidence she was forced to come to London to work as a prostitute.
- While in London, C.S. wanted to meet her friend “Nish” and Ms. A.D. offered to C.S. to meet Nish using the hotel room.
- At one point in her direct testimony, C.S. stated “I knew that if I wanted to get out of there I could”. In response to the question: “why didn’t you?” she responded: “I wanted to see if she would change. I have a kind heart. I wanted her to be the way she was in London – a friend I could talk to and a friend I could be around.”
- After an incident at a McDonald’s, C.S. was interviewed by police. In response to being asked why she didn’t ask police to take her back to London she said: “I didn’t say anything because I wanted to repair the relationship with Ms. A.D. and have a friend around and be on my own.”
- When asked in cross-examination whether she enjoyed living in Brampton with Ms. S.M. and Ms. A.D., C.S. responded: “Yes. I enjoyed being on my own. It was fun being independent.”
[99] C.S. testified that Ms. A.D. threatened to hurt her if she did not do as she said; however, C.S. could provide no specifics with respect to these threats as to number of threats made, the date of the threats, the locations of the threats or details of the harm threatened. Without detail, I am left with mere bald allegations of threatened harm and am unable to conclude, beyond a reasonable doubt, that Ms. A.D. ever threatened her with physical harm if she did not comply with her demand to work as a prostitute.
[100] As to her willingness to become a prostitute and engage in prostitution and whether her participation was voluntary, I am persuaded by the testimony of Officer Li. He testified that he satisfied himself based on the demeanour of C.S., the information she supplied to him and her responses to questions that despite her lower intelligence, C.S. was engaging in prostitution willingly, voluntarily and independently of either Ms. A.D. or Ms. S.M.. I have no reason to believe that C.S. was not honest and forthcoming during her discussions with Officer Li.
[101] Her statements to Officer Li have a striking similarity to the statements given on July 8, 2015 to Officer Pottruff. Despite Officer Pottruff’s explaining the risks of her chosen lifestyle, C.S. was adamant that she had no interest in being “rescued”. Their discussion was lengthy and despite Officer Pottruff’s efforts, C.S. remained steadfast. Her story changed only after she was met for the second time at the hotel by police, directed by Officer Pottruff to stand by the police vehicle which she did for 30 minutes, cautioned again about the risks of prostitution. I believe she feared she might find herself in trouble with the law if she did not agree she was the victim.
[102] Based on the totality of the evidence, I find that the complainant voluntarily provided sexual services for money during the period March 1 to July 8, 2015. She was not motivated to do so through threats of harm made by or fear of Ms. A.D., rather she enjoyed her independence and enjoyed living with Ms. A.D. and Ms. S.M. and earning money to help support herself and her children. This is not to say she may not have been conflicted by her choice of lifestyle and the impact it might have on her relationship with her mother and siblings and her ability to one day gain custody of her children; however, she enjoyed carrying on a common business venture with her two friends and enjoyed the benefits of working.
[103] Throughout her testimony, C.S. maintained that she was eager to be on her own. To be independent. To be out from under her mother’s watchful eye. I find that C.S. made the decision, without undue influence by the accused and without any duress or under any threat of harm of any kind, to reside with the accused and to continue to reside with the accused and to work as a prostitute.
[104] The seven prostitution-related offences with which the accused has been charged may be collectively dealt with. Simply stated, the Crown has failed to establish beyond a reasonable doubt the essential elements of the offences under s. 153.1(1), s. 279(2), s. 279.01(1), s. 279.02 and s. 286.3(1) of the Code.
The Alleged Assaults
[105] The evidence of C.S. with respect to the alleged assault in downtown Toronto incident was vague and completely devoid of detail. There was a material inconsistency in her evidence -- C.S. first testified that no one was present when the alleged assault occurred and then later testified that other persons were present but did not come to her defence.
[106] None of the eye witnesses to the alleged assault testified. No details as to the date of the incident, the identity of the other people present, what time of day or night the incident took place and the reaction by words or conduct, if any, of the complainant and/or Ms. S.M. who was also present, were provided. A failure to recall any of these details of the incident cannot be explained as a function of her reduced intellectual capacity. The lack of detail and material inconsistency in her evidence leaves me with a reasonable doubt as to the accused’s guilt.
[107] With respect to the second alleged assault which involved a claim that the accused bit the complainant in the forehead, C.S. testified:
Don’t remember that. I remember clearly her trying to bite my forehead. I remember her coming at me, pulling my hair, biting me. I don’t remember how she bit me. I don’t remember any of this.
[108] This is a confusing response. Either C.S. clearly remembers the incident and how it unfolded, or she does not. During cross-examination C.S. admitted that the bite may have been as a result of her lifting her head abruptly and coming into contact with the accused’s tooth. In those circumstances the necessary mens rea is missing. I find that the Crown has failed to prove beyond a reasonable doubt that Ms. A.D. assaulted C.S. by intentionally biting her in the forehead.
[109] I conclude that the evidence at trial painted a picture of an impressionable, but not vulnerable nor dependent, young woman striving for and attaining independence and choosing, of her own free will and cognizant of the risks of the trade, to work as a prostitute to earn money for herself and, to a lesser degree, to support her children. Her relationship with Ms. A.D. was one of friendship which regrettably soured over time. Ms. A.D., a prostitute herself, provided C.S. with a place to live, opportunities to work as a prostitute, she assisted C.S. in placing advertisements with the necessary restrictions, she saved money for the benefit of C.S., and she provided protection to the complainant while she working in a high risk profession. Ms. A.D. was a friend to C.S, she was not her pimp.
Disposition
[110] In summary, the Crown has failed to meet the burden of proof on all remaining nine counts. The evidence of the complainant and other Crown witnesses leaves me with a reasonable doubt as to the guilt of Ms. A.D. on the essential elements of the offences with which Ms. A.D. has been charged.
[111] In the result, Ms. A.D. is acquitted of the remaining nine counts on the indictment.
“Justice A. K. Mitchell”
Justice A. K. Mitchell
Released: May 31, 2018 (Orally)
COURT FILE NO.: 105/16
DATE: 20180531
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – A.D.
REASONS FOR JUDGMENT
Justice A.K. Mitchell
Released: May 31, 2018 (Orally)
[^1]: 2008 ABQB 767. [^2]: Ibid., at para. 60. [^3]: 1997 CarswellOnt 4036 (O.C.J.) at para. 72. [^4]: 1996 CanLII 198 (SCC), 1996 CarswellNB 259 (S.C.C.) [^5]: Ibid., at para. 16. [^6]: Ibid., at para. 34. [^7]: 2015 ONSC 7749. [^8]: Ibid., at para 50. [^9]: Ibid., at para 47. [^10]: S. 279.04(2), Criminal Code of Canada. [^11]: 2015 ONCA 558. [^12]: Ibid., at para. 70. [^13]: 2016 ONCJ 476. [^14]: Ibid. at para. 59. [^15]: Supra note xx, at para 71. [^16]: 2017 ONSC 4028 at para. 135. [^17]: Supra, at para.62. [^18]: 2016 ONSC 6965 at para.38. [^19]: Supra, at para.141. [^20]: 2007 CanLII 13358 (ONSC) at paras. 85-86. [^21]: 2017 ONSC 5562 at para. 110.