COURT FILE NO.: CR-17-008739
DATE: 20190222
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANDRIY MOHYLOV and MICHAEL PAVLOVSKY
Applicants
Kellie Hutchinson, Counsel for the Respondent, Crown
Rachel Lichtman, Counsel for the Applicant, Andriy Mohylov
Brian Weingarten, Agent for A. Wine, Counsel for the Applicant, Michael Pavlovsky
HEARD: February 1, 2019
reasons for decision
DI LUCA J.:
[1] Mr. Mohylov and Mr. Pavlovsky are alleged to be drug dealing pimps who used a number of persuasive techniques, including the provision of drugs, to control and benefit from the complainant’s involvement in the sex trade.
[2] Following a preliminary inquiry before Halikowski J., the Applicants were committed to stand trial on a number of charges including: Trafficking in a Schedule I, II, III or IV Substance; Advertising Sexual Services; Assault; Receiving Financial/Material Benefit from Trafficking of a Person; Receiving Financial/Material benefit from Sexual Services; Trafficking in Persons; and, Uttering Threats.
[3] The Applicants seek an order in the nature of certiorari quashing their committal to stand trial on the charge of Trafficking in Persons contrary to s. 297.01(1) of the Criminal Code. Should they be successful on this issue, the related charge of Receiving Financial/Material Benefit related to an offence committed under s. 297.01(1) would also be quashed.
[4] For the reasons that follow, the application is dismissed.
The Test on Review
[5] The parties are ad idem on the scope of review on a certiorari application seeking to quash a committal. The role of the reviewing court is limited. A committal can only be overturned where there is a jurisdictional error; see R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 19.
[6] A committal to stand trial in the absence of evidence on any one or more elements of an offence amounts to a jurisdictional error for the purposes of a certiorari review. On a jurisdictional review, the court should not interfere with a committal as long as there is at least a “scintilla of evidence” on each element of the offence; see R. v. Skogman, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, at p. 108.
[7] An error in law is generally an error within jurisdiction and cannot be reviewed by way of certiorari. However, where the error in law results in a committal to stand trial in the complete absence of evidence in relation to an element of the offence, a jurisdictional error may nonetheless result.
[8] In this case, the Applicants argue that the preliminary inquiry justice committed an error in law in assessing the legal test for an offence under s. 279.01(1) of the Criminal Code. This error in law led the justice to commit the Applicants to stand trial despite the absence of evidence on an element of the offence. In other words, they argue that had the preliminary inquiry justice properly understood the legal requirements of s. 279.01(1), he could not have committed the Applicants to stand trial on the charge as there was no evidence before him on an essential element of the offence.
The Elements of the Offence of Trafficking in Persons
[9] Section 279.01(1) of the Criminal Code provides:
Trafficking in persons
279.01 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable
(a) to imprisonment for life and to a minimum punishment of imprisonment for a term of five years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or
(b) to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years in any other case.
[10] This offence provision requires proof of two main elements; the conduct and the purpose; see R. v. A.A., 2015 ONCA 558, at para. 79. The conduct element can be established in a number of ways including exercising control, direction or influence over the movements of a person. The purpose element mandates proof that the accused’s conduct was for the purpose of exploiting or facilitating the exploitation of the person trafficked. In R. v. A.A., at para. 82, Watt J.A. suggests that the purpose element “extends beyond the intentional conduct that is the actus reus of the offence to what could be described as the object an accused seeks to attain, or the reason for which the conduct is done or the result intended”.
[11] It is important to note that in order for the offence to be established, it is not necessary that the accused’s conduct actually result in exploitation. It is sufficient if exploitation or the facilitation of exploitation is the purpose of the conduct: see R. v. A.A. at para. 85 and R. v. Urizar, 2013 QCCA 46, at para. 69.
[12] The meaning of the terms “exploiting” and “exploitation” as found in s. 279.01(1) of the Code can be discerned by reference to s. 279.04 of the Code, which provides:
Exploitation
279.04 (1) For the purposes of ss. 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.
Factors
(2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused
(a) used or threatened to use force or another form of coercion;
(b) used deception; or
(c) abused a position of trust, power or authority.
[13] This statutory definition of “exploitation” suggests the following three conclusions as set out in para. 70 of R. v. A.A.:
a. The expectation of the specific belief engendered by the accused’s conduct must be reasonable, thus introducing an objective element;
b. The determination of the expectation is to be made on the basis of all the circumstances; and,
c. The person’s safety need not actually be threatened.
[14] The term “safety” as it appears in s. 279.04 relates to protection from both physical and psychological harm: see R. v. A.A. at para. 71 and R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72 at p. 81.
[15] Lastly, a “drug dealer – drug user” relationship can in certain circumstances amount to a position of trust, power or authority. As the Court of Appeal notes in R. v. A.H., [2000] O.J. No. 3258 (Ont.C.A.) at para. 17:
The protection of the vulnerable and the weak and the preservation of the right to freely choose to consent to sexual activity is clearly the aim of s. 273.1(2)(c): R. v. Ewanchuk (1999), 1999 CanLII 711 (SCC), 131 C.C.C. (3d) 481 at 496-98 (S.C.C.); R. v. Audet (1996), 1996 CanLII 198 (SCC), 106 C.C.C. (3d) 481 at 490 ff (S.C.C.); Norberg v. Wynrib (1992), 1992 CanLII 65 (SCC), 92 D.L.R. (4th) 449 at 460-64 (S.C.C.). I have no doubt that it could have application to the relationship between a drug dealer and an addicted client. However, the relationship is not one of an imbalance of power per se. This is not a case of a position of authority or trust, such as in the prototypic doctor/patient, teacher/student relationship, where vulnerability is inherent to the relationship itself. The trial judge should have instructed the jury that they must be satisfied that because the appellant was a supplier of illicit drugs to the complainant, that this relationship created a relationship of dependency that could be exploited by the appellant to vitiate the complainant's consent to engage in sexual activity: R. v. Audet, supra: R. v. Matheson (1999), 1999 CanLII 3719 (ON CA), 44 O.R. (3d) 557 (Ont. C.A.).
The Evidence at the Preliminary Inquiry
[16] The complainant first became a sex worker when she left high school at age 18. In late 2014, the complainant was not doing well financially and she decided that she would work with someone in order to boost business. She had worked for at least two agencies providing sex services in the past and knew that money would be split 50-50 between herself and the agency. However, she knew that a business partner would provide clients and would assist with safety measures, including weeding out bad clients who made “ridiculous” requests.
[17] Initially she travelled to Alberta to work for an individual named “Dre”, though that ended quickly as she was caught stealing drugs from him. Dre sent her back to Ontario and recommended that she contact Mr. Mohylov to see if they could work together.
[18] In early 2015, the complainant met Mr. Mohylov and began providing sexual services to clients in various hotels in the Greater Toronto Area. For the following two to three years, the complainant continued to work on and off with Mr. Mohylov. At times, she would work for a few days a week providing sexual services in hotels and then return home to be with her family.
[19] Advertising for the complainant’s services was posted by Mr. Mohylov using both his phone and the complainant’s phone. At times, Mr. Mohylov would assist her in crafting the ads, though the rates were the rates she had used in the past. The complainant also placed her own restrictions on the types of sexual activities that she would perform.
[20] Mr. Mohylov would decide which clients she would see. The complainant would receive money from the clients and would turn it over to Mr. Mohylov. On occasion, Mr. Mohylov would get the money before the client left the hotel room.
[21] The complainant would pay for the hotel room out of her share of the money. She would also pay Mr. Pavlovsky for driving her to appointments, even though she at times had access to her own car.
[22] During the final six months of the working relationship, the complainant began working out of the basement of a home in Newmarket. While at this home, both Mr. Mohylov and Mr. Pavlovsky posted ads, weeded out unsuitable clients and would let her know when clients would be arriving. The complainant felt that the two accused were doing this because “they wanted to be in charge”.
[23] There were times when the complainant felt pressured to work. On occasion, Mr. Mohylov would yell at the complainant until she saw a client. She found Mr. Mohylov to be intimidating and scary. Both Mr. Mohylov and Mr. Pavlovsky would tell her they needed money and would repeatedly ask her to try to make more. She would often give in to the pressure in order to “get it over with”, make money and go home. She wanted to keep them happy and did not want to “piss them off”. Apart from a physical interaction with Mr. Mohylov stemming from an incident involving a game console, the complainant was never physically hurt by either accused.
[24] While at the Newmarket home, the complainant would give half the money earned to either Mr. Mohylov or Mr. Pavlovsky, depending on who booked the appointment. They also requested that she contribute to rent as she was staying at the home for extended periods of time. The complainant did not have access to WiFi at the home and did not have her own phone. It appeared to her that neither Mr. Mohylov nor Mr. Pavlovsky liked it when she spoke to her friends back home.
[25] The complainant had no fixed hours of work and was always on call. While she was never alone in the house, she often felt lonely as neither Mr. Mohylov nor Mr. Pavlovsky would spend any time with her. The complainant had romantic feelings for Mr. Mohylov and he would regularly tell her he loved her, though he did not make their relationship “public”. She believed that they had a romantic relationship.
[26] During the time frame of the complainant’s involvement with the accused, she was a drug user. The complainant’s drug use started before she met the accused. She had other sources for drugs and they did not force her to take drugs. That said, she often asked both accused for drugs and they supplied her. Initially, it was mainly Mr. Mohylov who procured drugs for her, though later in the relationship it was mainly Mr. Pavlovsky.
[27] While at the home in Newmarket, the complainant was heavily using drugs which were supplied by the accused. She paid for the drugs out of her share of the earnings from the sex work she was performing. Given the large quantity of drugs she was consuming, the complainant often gave all of her earnings to the accused.
[28] At times, the accused would provide her drugs on credit and she would pay them back out of the proceeds of her sex work. While the complainant could leave the home to “take a break”, she stayed at the home for longer periods of time and was doing drugs the whole time she was there.
[29] The complainant would, on occasion, leave the Newmarket home to return to her family. Before leaving the home, she would pay off any drug debt she had. She often left with no money. While the accused did not want her to go, they would drive her home or to a bus station when she wanted to leave. When she did so, Mr. Mohylov would then call her and urge her to come back. He would tell her he loved her and would also tell her he had drugs for her. She would go back to work for them because she needed the money and because they told her they had drugs for her.
The Committal Ruling
[30] The preliminary inquiry justice provided written reasons for committing the Applicants to stand trial on the various counts. In his reasons, he averted to the limitations in the evidence. In particular, he noted that the complainant was already engaged in the sex trade when she willingly started to work for Mr. Mohylov. Further, he noted that the complainant was not directly controlled, she was free to come and go at will. Her movement was only restricted by her affection for Mr. Mohylov, her drug use and her need for money.
[31] In terms of whether the accused exercised control over the complainant for the purpose of exploiting her, the preliminary inquiry justice framed the issue as whether a jury could conclude the complainant “engaged in the sex trade during their time together because she had come to believe that these two men would have placed her safety (both physical and psychological) in jeopardy if she failed to provide sexual services”. He then turned to the two-stage analysis discussed by the Court of Appeal in R. v. A.A. at paras. 70 to 77, and concluded that a jury could reasonably conclude that the complainant had been exploited by the accused regardless of whether she subjectively believed she had been exploited.
[32] In making this finding, the preliminary inquiry justice noted, inter alia; that the complainant was financially dependent on the accused; she surrendered most if not all her money to them; the accused appeared to have no other means of earning money; and, the complainant had an ongoing drug dependency which was supplied by the two accused. While physical violence, threats of violence, and deceit or attempted deceit were not used to control the complainant, the nature of the drug dealer - drug user relationship between the accused and the complainant permitted an inference that the complainant was performing the sexual acts in order to ensure the continued flow of drugs from the accused. This conclusion, according to the preliminary inquiry justice, was enough to support a finding of exploitation under s. 270.04 of the Criminal Code.
Analysis
[33] The Applicant, Mr. Mohylov, advanced the main arguments on this application. Mr. Pavlovsky adopted these submissions and also pointed out some factual differences in terms of the evidence relating only to him. Both argue that the preliminary inquiry justice exceeded his jurisdiction by committing them to stand trial in the absence of sufficient evidence permitting an inference of exploitation, as that term is understood in ss. 279.01(1) and 279.04 of the Criminal Code. Mr. Pavlovsky further submits that even if there was enough evidence against Mr. Mohylov, there was insufficient evidence against him and he should not have been committed to stand trial with Mr. Mohylov.
[34] The first argument advanced is that the evidence of the relationship between the accused and the complainant in terms of the supply and consumption of drugs did not amount to a relationship of trust or power. In this regard, counsel points out that the complainant was addicted to drugs before she met the accused and continued using drugs after the relationship ended. The accused did not get her addicted to drugs. Moreover, the complainant engaged in and continued to engage in sexual services because she wanted money, not because of the drugs.
[35] In support of this argument, counsel argues that the preliminary inquiry justice misapplied the Court of Appeal decision in R. v. A.H. That decision, argues counsel, arose in the context of consent to a sexual interaction and it merely recognized that a drug dealer - drug user relationship could be a relationship of trust. It does not stand for the proposition that every such relationship would amount, in law, to a relationship of trust vitiating consent.
[36] This argument can be readily rejected. At this stage, all that is required is some evidence that the relationship between the accused and the complainant involved a position of trust or power that was abused. More particularly, in the drug dealer - drug user context, an abuse of the trust relationship arises where there is an inference that a dependency was exploited to achieve a desired end.
[37] To state the obvious, a position of trust or power between a drug dealer and a drug user does not arise only where the drug dealer is the person who introduces the subject to drugs, or where the drug dealer is the sole source for the subject’s drugs. The accused does not have to be solely responsible for creating or maintaining the drug dependency. As well, the mere provision of drugs to a known addict does not in and of itself create a position of power and trust. Rather, the totality of the circumstances must be assessed to determine whether the relationship is one of trust and power.
[38] In this case, a jury could easily conclude that both accused were in a position of trust or power as drug suppliers to the complainant. They knew she was addicted to drugs. She was essentially paying for drugs given to her by the accused by engaging in sexual activity arranged for by the accused. Most, if not all of her share of the proceeds for the sexual activity, went to paying for drugs. The complainant was using drugs regularly and while at the Newmarket home, was using drugs “all the time.” During this time period, the accused were her main, if not only suppliers of drugs.
[39] In terms of abusing the relationship of trust or power, there must be evidence that the accused took advantage of the drug dependency to achieve a desired end. In the context of sexual assault, the desired end is the purported consent to sexual activity. In the context of human trafficking, the desired end is getting the sex worker to perform sexual acts.
[40] In this case, a jury could conclude that the complainant’s dependency on drugs was one of the reasons why she would not only engage in sex work, but also why she would return to sex work. Indeed, when asked why she would go back to work for them, the complainant indicated that they would say “I love you” and “we got Molly”. Clearly, the offer of the drug “Molly” played a role in her decision to return to working for the accused.
[41] From there, a jury could conclude that the accused used the complainant’s drug dependency to their advantage. They needed the complainant to provide sexual services to their customers. They knew the complainant was addicted to drugs and conveniently positioned themselves as her drug dealers. They provided drugs to her while she provided sexual services, and they extended credit for the drugs that could be paid off through further sex work. The complainant was using drugs in a quantity that resulted in her having little or no money left over after her sexual services were rendered. The accused were also the complainant’s business “partners”, landlords and as far as Mr. Mohylov was concerned, love interest.
[42] One obvious inference is that the supply of drugs by the accused not only ensured that they managed to extract more money from the complainant, it was also a mechanism used to get the complaint to perform sex work and coax her back into sex work when she decided to take a break. These findings, which are reasonably available to the jury, would support a finding that the accused abused their position of trust or power over the complainant.
[43] The Applicants next argue that even if the complainant performed sexual services because of her drug dependency, there was no evidence that the complainant did so because she was in fear for her physical or psychological safety.
[44] This submission must be considered in the context of the elements of the offence under s. 279.01(1) and the definition of exploitation in s. 279.04. Section 279.01(1) requires that the conduct of the accused must be undertaken for the purpose of exploiting or facilitating the exploitation of the complainant. Under s. 279.04, the determination of “exploitation” involves an objective assessment based on all of the circumstances.
[45] It is important to recall that the complainant does not need to subjectively feel that her physical or psychological safety is under threat unless she continues to perform sexual work. Instead, it is sufficient if the accused’s conduct can be reasonably expected to cause the complainant to believe that her safety would be threatened if she failed to provide sexual services.
[46] Based on the evidence at the preliminary inquiry, I conclude that a jury could reasonably infer that one purpose for supplying the complainant, a known addict, with a steady stream of drugs, was to keep her in the sex service industry. Moreover, a jury could further reasonably conclude that this purpose carried with it an implicit threat that if the complainant stopped performing sex work, they would stop providing drugs. Further, as the accused would provide her with drugs on credit, she would also find herself potentially indebted to the accused.
[47] Considering the totality of the circumstances in this case, either or both outcomes in combination could objectively be viewed as a threat to the complainant’s physical and/or psychological safety. A jury could conclude that a drug addicted complainant’s psychological safety would reasonably be imperilled if she was precipitously cut off from a drug supply she was accustomed to receiving. Similarly, a jury could conclude a complainant’s physical safety would reasonably be imperilled if she owed money for drugs and decided to stop providing sexual services which had been performed to pay for the drugs. While the preliminary inquiry judge did not specifically address these issues, they are implicit in his findings at paras. 14(e) – (h) of his reasons. They are also supported by the evidence at the preliminary inquiry. That said and to be clear, at this stage, these findings only need be one reasonable inference available from all the circumstances. They do not need to be the only reasonably available inference.
[48] A final issue raised relates to whether the preliminary inquiry justice properly considered whether the evidence established that the accused believed that their conduct could reasonably cause the complainant to feel like her physical or psychological safety would be threatened if she did not comply. In support of this argument, the Applicants rely on R. v. Masoudi, 2016 ONCJ 476, a decision on a preliminary inquiry wherein Fairgrieve J. discharged two accused in similar circumstances to this case. In his Reasons for Decision, Fairgrieve J. noted that while there was evidence that the two accused persons took advantage of the complainant, who was a vulnerable person in a desperate predicament, there was no evidence before him that would permit an inference that the accused reasonably expected that their conduct would result in the complainant’s exploitation.
[49] The Applicants read Fairgrieve J.’s reasons as requiring the accused to have subjective knowledge that their conduct could reasonably cause a complainant to feel like her safety was threatened. They argue that in this case, much like in Masoudi, there is no evidence that the accused reasonably expected that their conduct would cause the complainant to provide sexual services out of fear for her physical or psychological safety.
[50] The Crown argues that the “for the purpose of exploitation” component of the offence is assessed on entirely objective grounds. Would the actions of the accused have caused a reasonable person in the same circumstances to provide sexual services out of fear for their physical or psychological safety? According to the Crown, the answer to this question determines the purpose element of the offence.
[51] Moreover, the Crown argues that asking whether the accused would reasonably have expected his actions to cause a person in the same circumstances to provide sexual services out of fear for their physical or psychological safety poses a redundant question. If a reasonable person would conclude that an accused’s actions would have caused a complainant to provide sexual services, an accused person, acting reasonably, would also so conclude.
[52] Resolution of this issue is neither straightforward nor easy. The interplay between s. 279.01(1) and s. 279.04 presents challenges in terms of demarcating the precise nature of the mens rea required for the offence. It is clear that the accused must subjectively intend the conduct required under s. 279.01(1). It is also clear that the accused must engage in that conduct “for the purpose” of exploiting or facilitating the exploitation of the complainant. In other words, the accused must engage in one of the specified forms of conduct intending to exploit or facilitate the exploitation of the complainant.
[53] However, the analysis becomes difficult when one looks at the definition of “exploitation” in s. 279.04, which suggests that a person exploits another person if they cause them to provide services by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide services.
[54] The difficulty with these two sections is that the offence provision in s. 279.01(1) does not require a completed act of exploitation. Rather, it requires that the accused recruit, transport, transfer, receive, hold, conceal or harbour a person, or exercises control, direction or influence over the movements of a person for the purpose of exploitation or facilitating the exploitation of that person. While these various forms of conduct must be done for the purpose of exploitation, the person does not need to be actually exploited for the offence to be complete.
[55] Confusingly, s. 279.04 provides a definition of a completed act of exploitation. This definition introduces an objective element, and as such does not require the person exploited to have subjectively acted out of fear for their safety. Rather, it is sufficient if the accused causes the person to provide a service by engaging in conduct which could reasonably be expected to cause the person to believe that their safety would be threatened if they failed to provide the service.
[56] The interplay between these two sections is curious. Perhaps one way to look at this issue is that s. 279.04 essentially addresses a matter of proof in support of the offence provision under s. 279.01(1). There will often be no direct evidence of an accused’s subjective “purpose”, and in such cases the trier of fact must draw inferences about the accused’s purpose from the surrounding circumstances. Oftentimes, the nature of the act committed will permit inferences about the accused’s subjective intent. Indeed, the common sense inference that an accused intends the natural consequences of his or her acts reflects this concept. In this regard, a completed act of exploitation can present a basis upon which the inference can be drawn that the accused acted for the purpose of bringing this state of affairs about. As such, it may be that s. 279.04 simply redefines a completed act of exploitation by including an objective component so as to broaden the basis for inferring the culpable nature of the accused’s intent. If this was the case, reliance on the definition in s. 279.04 would permit an inference that the accused acted for the purpose of exploitation even in cases where the complainant for some reason did not subjectively feel or believe she was exploited, so long as the accused’s actions would have reasonably caused an ordinary person in her position to perform sexual services out of fear for her safety.
[57] The interplay between these two sections also poses an analytical problem in terms of the mens rea of the offence. Does the “for the purpose” element require the accused to subjectively intend and/or anticipate that his conduct will cause the complainant to perform sexual services out of a fear for her safety, regardless of whether fear was actually caused? Does the accused have to subjectively intend or anticipate that his conduct would reasonably cause a person to perform sexual services out of fear for their safety? Or is it sufficient that an objective assessment of the accused’s conduct would cause a person to perform sexual services out of fear for their safety?
[58] In Masoudi at para. 58-59, Fairgrieve J. addressed this issue as follows:
- At para. 70 of his reasons in A.A., Watt J.A. made the following statement, albeit in language that requires further context to understand:
[70] On a straight-up reading of this definition of exploitation [in s. 279.04(1)], three conclusions emerge:
(i) the expectation of the specific belief 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;
(iii) the person's safety need 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.
When Watt J.A. referred in that passage to "the expectation", he clearly meant what the accused believed would be the consequence, in the mind of the victim, of his conduct. Similarly, when Watt J.A. used the phrase "the specific belief engendered by the accused's conduct", he was undoubtedly referring to the victim's fear for her safety, which need not actually have been caused, but must have been anticipated by the accused, in order to meet the s. 279.04(1) definition. Moreover, such fear anticipated by an accused, whether it actually existed on the part of the victim or not, must be an objectively "reasonable expectation" on his part.
- Unlike, for example, the offence of criminal harassment, contrary to s. 264(1), that requires, as a constituent element of the actus reus, that a victim's reasonable fear for her safety actually be caused by the accused's conduct, exploitation, as defined by s. 279.04(1), requires instead that an accused's expectation of such fear, whether it was caused or not, be reasonable. In other words, an accused must have reasonably foreseen that his conduct could, at least potentially, have given rise to such a fear on the part of the complainant, i.e., that if she did not continue to engage in prostitution, she would suffer harm. I am not sure that Mr. Coughlan, even after citing the passage from A.A. just quoted, grasped the distinction.
[59] While Fairgrieve J.’s interpretation may well be correct, I need not finally determine the issue. In my view, regardless of which approach is taken on the mens rea issue, I am satisfied for the purpose of this certiorari application that there was some evidence upon which a committal could stand. Viewed in context, the circumstances of the drug trafficking by the accused to the complainant including the duration, the quantity of drugs, the value of the drugs relative to the value of sexual services provided, the fact that the complainant was known to be an addict, the fact that the drugs were extended on credit and the fact that the accused were also the complainant’s purported business partners, landlords, and insofar as Mr. Mohylov was concerned love interest, all suggest that both accused subjectively intended and expected their conduct to cause the complainant to provide sexual services under fear of physical or psychological threat. The availability of this inference is even stronger when the nature and context of the relationship between the parties is considered. For at least a period of time, the complainant was living in the basement of a house, on call to perform sexual services. She was isolated and effectively making no money for herself. She was urged to continue performing sexual services. She feared one of the two accused, and while she was nominally “free” to leave, she was readily coaxed back with the promise of more drugs. On the totality of these circumstances, a jury could find that the accused acted with the requisite mens rea under either competing interpretation of the statutory provisions. That is to say, it would be open to a jury to find that the accused subjectively intended to induce the complainant to continue providing sexual services in order to continue obtaining drugs from them, and that it was not only reasonable to expect a person in this situation to fear for her psychological or physical safety if her drug supply were cut off and she were left owing a debt, but that the accused knew and intended this probable consequence of their actions.
[60] Lastly, I will address Mr. Pavlovsky’s submissions that his involvement does not support a committal even if Mr. Mohylov’s involvement does. In this regard, I accept that on the evidence at the preliminary inquiry, Mr. Mohylov has a higher degree of involvement and indeed appears to be the prime instigator of these alleged offences. That said, the evidence also supports a finding that Mr. Pavlovsky was, at least by the end of the relationship, more involved than Mr. Mohylov in supplying drugs to the complainant. In any event, the evidence reasonably supports a finding that Mr. Pavlovsky was either a co-principal with or at least a party to Mr. Mohylov’s conduct vis-à-vis the complainant. While the differences may impact the outcomes at trial, there is no meaningful basis upon which to distinguish Mr. Pavlovsky for the purposes of this jurisdictional review.
[61] The application is dismissed.
Justice J. Di Luca
Released: February 22, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ANDRIY MOHYLOV and MICHAEL PAVLOVSKY
Applicants
REASONS FOR DECISION
Justice J. Di Luca
Released: February 22, 2019