COURT FILE NO.: CR-17-10000290-00MO
DATE: 20180703
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JEROME LAING
J. Stanton, for the Applicant
C. Rippell, for the Respondent
HEARD: 25 June 2018
s.a.Q. akhtar j.
FACTUAL BACKGROUND
Introduction
[1] Jerome Laing was charged with two co-accused, Ahamadu Ahmed and Maher Saleh, with the following offences:
Trafficking in persons under the age of 18 pursuant to s. 279.011(1) of the Criminal Code.
Receiving a material benefit knowing that it was obtained directly or indirectly from trafficking persons under the age of 18 contrary to s. 279.02(2) of the Criminal Code;
Receiving a material benefit knowing that it was obtained directly or indirectly from the sexual services of a person under 18 contrary to s. 286.2(2) of the Criminal Code.
[2] At the preliminary inquiry, the judge committed Mr. Ahmed and Mr. Saleh, but discharged Mr. Laing on the basis that the Crown had failed to meet the test for committal.
[3] The Crown brings an application for certiorari with mandamus in aid to quash the order made by the preliminary inquiry judge and remit the matter to the Ontario Court of Justice with an order directing that Mr. Laing be committed on all charges.
The Evidence at the Preliminary Inquiry
[4] The complainant, 16 years of age at the time of the allegations, and a young woman with a history of drug addictions, met Mr. Ahmed through her sister’s boyfriend.
[5] In late November 2015, the complainant was contacted by Mr. Ahmed to arrange a meeting. He collected her in a vehicle accompanied by Mr. Saleh and all three went to a hotel outside Lindsay where they consumed drugs and alcohol and engaged in sexual activity. The complainant testified that she was intoxicated and/or drugged by the two men and passed out.
[6] When she awoke, she found that she had been driven in the car to the Toronto area. The complainant alleged that the two men told her that in order to return to her home, she would have to make money for them.
[7] The men posted the complainant’s pictures on Backpage.com - an escort site - and over the next two to three weeks, the complainant was transported to a number of different hotels in the Greater Toronto region to perform sexual services for money.
[8] The complainant testified that she performed sexual services for approximately six to seven clients per day over a period of two to three weeks, earning on average $300-400 per night. Both Mr. Ahmed and Mr. Saleh would book the rooms, provide condoms and arrange for clients. The complainant was promised 30% of the income earned, but received nothing.
[9] Although Mr. Ahmed and Mr. Salah usually booked the rooms themselves, in two instances they were assisted by a third man: Jerome Laing.
[10] According to the complainant, she met Mr. Laing at the end of the first week or the beginning of the second week of providing sexual services. There is no dispute that Mr. Laing booked two hotel rooms used by the complainant to service clients. These rooms, at the Courtyard Marriott and Be Sixfifty hotels, were booked on two consecutive nights with Mr. Laing accompanying the two co-accused and the complainant to each of the locations.
[11] One of Mr. Laing’s bookings was made online using his credit card whilst the other was made in-person. On both occasions, when Mr. Laing attended the hotels he signed in with a different name, “Jerome Allen”, despite providing genuine credit card information and an authentic email address.
[12] The complainant testified that on the two occasions Mr. Laing sat in the car he spoke to Mr. Ahmed and Mr. Saleh in an “African language” that she did not understand. When cross-examined by defence counsel, the complainant testified that Mr. Laing and the two other men seemed “more distant” and “not close at all”.
[13] On each occasion, when they reached their destination, Mr. Laing entered the hotel with one of the men and the complainant remained seated in the car until the booking had been completed. Only then did she enter the hotel and go to the reserved room with Mr. Ahmed and Mr. Saleh.
[14] As well as relying on the testimony of the complainant, the Crown filed a number of exhibits, including photographs depicting the complainant at the time of the allegations, surveillance video from the Courtyard Marriott hotel which displayed Mr. Laing inside the hotel at the time of the booking, and the police interview of Mr. Laing recorded after his arrest.
[15] The preliminary inquiry judge committed Mr. Ahmed and Mr. Saleh for trial, finding that the Crown had satisfied the test for committal. However, the judge found there was no basis on which the Crown could establish Mr. Laing’s knowledge of exploitation or any other action that amounted to trafficking under s. 279.011(1) of the Criminal Code. Accordingly, Mr. Laing was discharged.
LEGAL PRINCIPLES
[16] Subsection 548(1) of the Criminal Code reads as follows:
548 (1) When all the evidence has been taken by the justice, he shall
(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
[17] The test for committal is well settled in the jurisprudence: if there is sufficient evidence of criminal charges upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit an accused person to stand trial on those charges.
[18] If the Crown has adduced direct evidence on all elements of the offence, the preliminary inquiry judge must commit the accused even in the face of exculpatory evidence: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 29. If, however, the Crown relies upon circumstantial evidence to justify committal, the preliminary inquiry judge is permitted to engage in a “limited weighing” exercise. In so doing, the judge does not draw inferences from facts or assess credibility, but assesses “the reasonableness of the inferences to be drawn” from the circumstantial evidence: Arcuri, at paras. 29-30. Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: R. Wilson, 2016 ONCA 235, at para. 24; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18.
[19] If there is no evidence on an essential element of the charge, it is jurisdictional error to commit an accused for trial: United States of America v. Shephard, at p. 1080.
[20] However, in the case of a discharge, if the judge erroneously concludes that the totality of evidence is insufficient to commit, there is generally no jurisdictional error even though the judge is later found to be wrong: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 23. That said, in a case involving circumstantial evidence, failure to consider an inference favourable to the Crown, or failure to consider the whole of the evidence, is an error of jurisdiction: Sazant, at para. 18; Deschamplain, at para. 38.
[21] Circumstantial inferences are ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. Those inferences cannot be based on speculation or conjecture: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 530. However, a reasonable and logical inference to be drawn from circumstantial evidence need not flow easily from the facts. In other words, a difficult inference can also be logical and relevant: R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 52 O.R. (3d) 321 (C.A.), at para. 40. Nor need the inference be a likely or probable inference. Even if it is a difficult inference to draw, the inference that is most favourable to the Crown must be drawn at the preliminary inquiry stage: R. v. Dwyer, 2013 ONCA 368, at para. 4.
[22] The preliminary inquiry justice is obliged to consider the totality of the evidence and must not isolate particular pieces of evidence. As noted above, failure to do so amounts to a jurisdictional error: Deschamplain, at para. 38.
[23] The reviewing court provides a remedy for any jurisdictional error made by the preliminary inquiry judge. It is not empowered to substitute its own view as to whether there was sufficient evidence to satisfy the test for committal.
[24] As noted, the preliminary judge’s decision to discharge the accused cannot be appealed, but can be and has been challenged by way ofcertiorari: Sazant, at para. 14. The reviewing court provides a remedy for any jurisdictional error made by the preliminary inquiry judge. It is not empowered to act as an appellate court and correct errors of law or substitute its own view as to whether there was sufficient evidence to satisfy the test for committal.
DID THE PRELIMINARY INQUIRY JUDGE COMMIT JURISDICTIONAL ERROR?
The Issue in Question
[25] The Crown relies upon Mr. Laing’s role as a party to the offence as a basis for his criminal liability. Its position is that Mr. Laing booked the hotel rooms on behalf of Mr. Ahmed and Mr. Saleh so that the complainant could meet potential clients there and provide sexual services.
[26] There is no dispute between the parties that there was evidence of the actus reus of the three offences with which Mr. Laing was charged. The central question before the preliminary inquiry judge was whether the evidence gave rise to a reasonable inference that Mr. Laing knew the rooms that he had booked were to be used for the purpose of exploiting the complainant; and that the money he received flowed from that exploitation.
Was there a Reasonable Inference of Knowledge?
[27] The evidence tendered by the Crown disclosed the following:
Mr. Ahmed and Mr. Saleh were exploiting the complainant by arranging for her to provide sexual services for money. The evidence of the complainant alone would be sufficient to establish committal on this ground;
Mr. Laing knew both Mr. Ahmed and Mr. Saleh as friends. The evidence at the preliminary inquiry suggested that both co-accused were approaching friends in the hope of using their credit cards as a form of payment. It would therefore be a reasonable inference that Mr. Laing would only entrust his credit card information to those people with whom he shared a sufficiently close relationship;
Mr. Laing was with Mr. Ahmed and Mr. Saleh in the same vehicle when the complainant was transported to different hotels on two consecutive nights;
Mr. Laing booked both hotels using his credit card;
The complainant looked very young. Photos taken from her mobile phone were tendered as exhibits by the Crown. As well, the complainant testified that approximately six of her clients had enquired about her age when they first met her, the logical inference being that they were concerned that she was under the age of sixteen. Finally, the Crown called an independent witness who saw the complainant at the hotel who testified that she looked very young;
When Mr. Laing and one of the other males entered the hotel to book the rooms. The complainant remained in the car and only entered after the room had been booked;
The complainant did not take an overnight bag with her to either the Courtyard Marriott or the Be Sixfifty;
Mr. Laing was asked to make the reservations on two consecutive nights at two different hotels;
Mr. Laing received a payment of $20 for each booking, leading to the reasonable inference that there was a commercial reason for the room rather than just a favour to a friend;
Mr. Laing reserved the room at the Be Sixfifty under a fictitious name: “Jerome Allen”.
[28] This evidence, taken as a whole, disclosed a reasonable inference that Mr. Laing knew that the complainant was being taken to each hotel by Mr. Ahmed and Mr. Saleh to provide sexual services for payment. This reasonable inference favoured the Crown and the preliminary inquiry judge was required to apply it to her decision on whether to commit Mr. Laing.
[29] Instead, she rejected any inference at all. At para. 48 of her reasons, she wrote:
Crown suggests that because he signed the hotel register at the Marriott and the Besixfifty as Jerome Allen, although providing his true email and credit card information, the Court has a basis for inferring knowledge of the specific wrongdoing that the hotel was being used for. This is plainly an inferential gap which cannot be bridged by the evidence in this case. To leap over that gap and find that this almost laughable attempt to conceal his identity shows his knowledge, in the context of riding in a car of two consecutive nights with his acquaintance and two others to help obtain a hotel room comports the specific elements of human trafficking in relation to a person under eighteen is an impossibility.
[30] Her failure to apply the inference most favourable to the Crown constitutes an error of jurisdiction and the Crown’s application must therefore succeed.
Did the Preliminary Inquiry Judge Consider the Whole of the Evidence?
[31] The preliminary inquiry judge committed a second error of jurisdiction by failing to consider the whole of the evidence as she was required to do.
[32] The judge began her analysis of the test with respect to Mr. Laing at para. 46 of her reasons. In so doing, she outlined the evidence she regarded as pertinent in the case against him, including his presence, the use of his credit cards, and his familiarity with Mr. Saleh. I agree with the able submissions of counsel for Mr. Laing that the judge may well have identified the evidence set out before her. I disagree with his contention that she considered it. More significantly, she did not consider the whole of the evidence.
[33] First, even when one views the evidence referred to by the judge, two important items are missing: the fact that the complainant remained in the car and did not enter the hotel at the time that the reservations were made; and the fact that the complainant did not appear to have any overnight bag with her.
[34] There is no doubt that the trial judge is not necessarily required to identify each and every item of evidence in their reasoning. As Major J. pointed out in Deschamplain, at para. 24:
Silence in the reasons alone may not necessarily be sufficient to justify the intervention of a reviewing court. As this Court has previously held, there must be some rational basis in the record to justify such intervention.
[35] However, that is not what happened here. As noted, in para. 48 of her reasons, the preliminary inquiry judge’s focus appears to have fixed upon one aspect of the Crown’s case: Mr. Laing’s use of a fictitious name. This occurred because of a misapprehension of the Crown’s argument with respect to what evidence supported the reasonable inference of knowledge. The judge thought that the Crown relied solely on Mr. Laing providing the name of Jerome Allen as the basis for inferring knowledge. That, however, was not the case. The Crown relied upon the accumulation of factors as circumstantial evidence giving rise to a reasonable inference that Mr. Laing had the required knowledge.
[36] When the judge rejected the false name evidence as “an inferential gap which cannot be bridged by the evidence in this case,” the evidence she referred to was “the riding in a car of two consecutive nights with his acquaintance and two others to help obtain a hotel room.” This, plainly, was not a consideration of all the evidence as it ignored the factors set out earlier in these reasons and their cumulative effect in providing the necessary inference that Mr. Laing knew of the exploitation when booking the rooms and that he was being paid to assist for that purpose.
[37] Although the judge later claimed to take into account “all of the evidence” tendered, it is clear that she did not do so, and simply paid lip service to the test in Deschamplain.
[38] For these reasons, I find that the preliminary inquiry did not consider all of the evidence and committed jurisdictional error.
CONCLUSION
[39] For the reasons set out above, the Crown’s application for certiorari is granted. The order discharging Mr. Laing is set aside. Since the preliminary inquiry judge is no longer presiding as a judge, the matter is remitted to the Ontario Court of Justice. Mandamus will issue requiring a justice of the Ontario Court of Justice to commit Mr. Laing to stand trial on all charges.
S.A.Q. Akhtar J.
Released: 3 July 2018
COURT FILE NO.: CR-17-10000290-00MO
DATE: 20180703
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JEROME LAING
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.