COURT FILE NO.: CRIMJ(P)17-714-00
DATE: 2019 06 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
- and -
FRANCIS ANTOINE
Respondent
Veronica Puls, for the Applicant
Ronald Chu, for the Respondent
HEARD: April 9-12 and 15-17, 2019
REASONS FOR DECISION
LEMAY J
[1] The Crown alleges that Francis Antoine was a pimp. Specifically, the Crown says that Mr. Antoine procured both S.S.F. and K.G to become prostitutes, that he exploited both of them and that he received a material benefit from exploiting both of them. In addition, the Crown alleges that Mr. Antoine assaulted and sexually assaulted S.S.F. All of these charges are laid out in an eight count indictment.
[2] The Crown and Defence were able to agree on some facts. The Agreed Statement of Facts is reproduced (on an anonymized basis) at Appendix “A” of these reasons. I have referred to the agreed facts at the relevant points in the narrative.
[3] I have divided my reasons into the following sections:
a) A brief background of the narrative in relation to each complainant.
b) An outline the relevant charges and a discussion of the relevant law as it relates to the procuring, exploiting and material benefit counts of each indictment, as the law is the same for the charges relating to both complainants.
c) An analysis of the evidence relating to each complainant, and my findings of fact.
d) A discussion of whether the evidence from each complainant is admissible in relation to the counts on the indictment relating to the other complainant.
e) An analysis of each charge for each complainant and its disposition, as well as my conclusions on the law and the facts.
Background
[4] In addition to the Agreed Statement of Facts, I heard testimony during the course of this trial from the complainants, S.S.F. and K.G, as well as S.S.F.’s grandmother and the accused. When I set out my analysis of each charge for each Complainant, I will identify and resolve the significant credibility disputes between the witnesses. I also note that K.G.’s allegations arise first chronologically, but that S.S.F. testified first at trial. I will address the evidence in the order it was presented at trial.
[5] Before addressing the law or the detailed facts of this case, it is helpful to briefly outline who the accused is, as well as a brief summary of who the complainants are, and what allegations they are making against the accused.
a) The Accused
[6] The accused is currently 35 years old. Prior to being taken into custody on these charges, he lived in Mississauga. He has two children, who are currently 14 and 11. The children and their mother live in Ottawa.
[7] The accused testified that, in the past, he had his own clothing line. As well, he testified that he worked in the painting business. He acknowledged that he did not make very much money in painting in the last few years and that the clothing line had not been active for a while.
[8] The accused testified about his criminal record, which was entered as an exhibit. Having reviewed that record, I am not persuaded that it has any probative value in respect of the charges before me, and I will not refer to it further.
[9] The accused denied the allegations made by S.S.F. and K.G. On his view of the facts, he was simply assisting them by providing services, such as booking hotel rooms, providing telephones, providing condominium rentals (to K.G.) and posting ads on Backpage. He also denied the allegations of sexual assault.
b) S.S.F.
[10] S.S.F. originally met the accused either late at night on February 1st, 2017 or early in the morning on February 2nd, 2017. S.S.F. acknowledged in her testimony that she was interested in getting into escorting, and that she had been working in strip clubs in Ottawa. S.S.F. was 19 years old at the time, and had been addicted to various drugs since she was 16.
[11] S.S.F. was introduced to the accused by a friend named Ray. S.S.F. went with the accused to the Stardust Motel, a motel in the Ottawa area. There is a dispute as to whether S.S.F. spent one night or two nights at this motel, and I will return to the events that took place at the Stardust Motel below.
[12] In any event, S.S.F. returned home to the town outside of Ottawa where she lived with her grandmother. She then reconnected with the accused on Tuesday, February 7th, 2017 via Facebook. The two of them corresponded over the course of the next few days.
[13] Late in the evening on February 11th, 2017, the accused came to the Ottawa area to pick up S.S.F. The accused had a driver driving the car for him because his license was suspended at the time. They drove back to Toronto and arrived at the condominium that the accused was renting on the morning of February 12th, 2017.
[14] Over the next week, S.S.F. worked as a prostitute, mostly at hotels. During this time, she was using cocaine heavily, and the cocaine was being provided to her by the accused.
[15] After some discussion with her grandmother, S.S.F. went with the police when they came to her hotel room, and then returned home to the Ottawa area.
c) K.G.
[16] At the time of trial, K.G. was twenty three years old. She would have been 19 to 20 at the time of her involvement with the accused. K.G. is from Northern Ontario. She started using drugs around age 14, and used oxycodone, hydromorphine and fentanyl. K.G. testified that she was not an addict, but a daily drug user.
[17] She had worked in the sex trade prior to meeting the accused. In the summer of 2015, K.G.’s friend K.C. was working as an escort in Toronto. K.C. suggested to K.G. that she should come to the Toronto area. K.G. came to work as an escort in the Toronto area because she understood that the money was better than in Northern Ontario.
[18] K.G. met the accused on the first night she was in the Toronto area. K.G. worked for one night at a Quality Inn, and then returned to Northern Ontario after getting into an argument with K.C.
[19] K.G. got back in contact with the accused, and then returned to the Toronto area shortly thereafter. When she came to Toronto, she worked in the sex trade mostly out of a condominium that the accused was renting. She also performed some work out of hotel rooms that the accused booked.
[20] K.G. had a number of trips back and forth to Northern Ontario. However, she went home in December of 2015 and gave a statement to the police because she was alleging that the accused was keeping all of the money from her work in the sex trade.
[21] In the first part of 2016, K.G. came back to the Toronto area and worked in the sex trade with the accused. She also brought her sister back with her, and introduced her sister to the accused. K.G. then returned to Northern Ontario, and had no further contact with the accused.
[22] This provides a basic summary of the events that give rise to these charges. There is considerable detail in the evidence of all of the witnesses who testified, and I will review that detail after setting out the elements of the offences.
The Charges and the Relevant Law
[23] Mr. Antoine is charged with the following offences:
- That he, within a period of 14 days, last, past and ending on or about the 18th day of February, 2017, at the City of Mississauga, in the Central West Region and/or elsewhere in the Province of Ontario, did transport, receive, hold, conceal, harbor or exercise control, direction or influence over the movements of [S.S.F.], for the purpose of exploiting her or facilitating her exploitation, contrary to section 279.01(1) of the Criminal Code of Canada;
Francis ANTOINE further stands charged:
- That he, within a period of 14 days, last, past, and ending on or about the 18th day of February, 2017, at the City of Mississauga, in the Central West Region and/or elsewhere in the Province of Ontario, did unlawfully receive a financial benefit or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1) of the Criminal Code, contrary to section 279.02(1) of the Criminal Code of Canada;
Francis ANTOINE further stands charged:
- That he, within a period of 14 days, last, past, and ending on or about the 18th day of February, 2017, at the City of Mississauga, in the Central West Region and/or elsewhere in the Province of Ontario, did for the purpose of facilitating an offence under subsection 286.1(1) recruit, hold, conceal, harbor or exercise control, direction or influence over the movements of [S.S.F.] to offer or provide sexual services for consideration, contrary to section 286.3(1) of the Criminal Code of Canada;
Francis ANTOINE further stands charged:
- That he, within a period of 14 days, last, past, and ending on or about the 18th day of February, 2017, at the City of Mississauga, in the Central West Region and/or elsewhere in the Province of Ontario, did unlawfully commit an assault on [S.S.F.], contrary to section 266 of the Criminal Code of Canada;
Francis ANTOINE further stands charged:
- That he, within a period of 4 days, last, past, and ending on or about the 7th day of February, 2017, at the City of Mississauga, in the Central West Region and/or elsewhere in the Province of Ontario, did commit a sexual assault on [S.S.F.], contrary to section 271 of the Criminal Code of Canada;
Francis ANTOINE further stands charged:
- That he, between the 31st day of August, 2015 and the 15th day of December, 2015, at the City of Mississauga, in the Central West Region and/or elsewhere in the Province of Ontario, did, recruit, transport, transfer, receive, hold, conceal, harbor or exercise control, direction or influence over the movements of [K.G.], for the purpose of exploiting her or facilitating her exploitation, contrary to section 279.01 of the Criminal Code of Canada;
Francis ANTOINE further stands charged;
- That he, between the 31st day of August, 2015 and the 15th day of December, 2015, at the City of Mississauga, in the Central West Region and/or elsewhere in the Province of Ontario, did receive a financial benefit or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1) of the Criminal Code, contrary to section 279.01(1) of the Criminal Code of Canada.
Francis ANTOINE further stands charged:
- That he, between the 31st day of August, 2015 and the 15th day of December, 2015, at the City of Mississauga, in the Central West Region and/or elsewhere in the Province of Ontario, did for the purpose of facilitating an offence under subsection 286.1(1) recruits, holds, conceals, harbours or exercise control, direction or influence over the movements of [K.G.] to offer or provide sexual services for consideration, contrary to section 286.3(1) of the Criminal Code of Canada;
[24] There are two charges of exploitation under section 279.01(1), two charges of receiving a material benefit under section 279.02(1) and two charges of procuring under section 286.1 and 286.3 of the Criminal Code. Each of those charges relates to a different complainant, and a different time period. There are also assault charges, but they only relate to the accused’s interactions with S.S.F.
[25] The relevant provisions of the Criminal Code state:
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 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 fourteen years in any other case.
(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid.
279.02 (1) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
[26] These are new and complex provisions of the Criminal Code. Therefore, it is worth setting out some of the relevant legal principles at the outset of these reasons.
[27] I will first deal with the human trafficking provision in 279.01 and the material benefit provision in 279.02, as they are intertwined. In R. v. A.A. (2015 ONCA 558), Watt J.A. set out the elements that must be established in order to prove an offence under section 279.011, but the principles (other than the age of the victim) are the same for offences under s. 279.01. The two elements that must be established are:
a) The exercise of control, direction or influence over the movements of a person; and,
b) For the purpose of exploiting or facilitating the exploitation of that person.
[28] The elements that must be made out to establish the material benefit offence in section 279.02(1) are set out in R. v. K.G.A.(2019 ONSC 275) as follows:
a) The accused received a financial or other material benefit;
b) The benefit was derived from the commission of a trafficking in persons offence and the accused knew that fact; and
c) The prohibited conduct in section 279.01 occurred.
[29] When these two offences are considered together, it is clear that the meaning of “exercised control, direction or influence” and “exploitation” are critical to determining whether either offence took place.
[30] I start with “exercised control, direction or influence”. In R. c. Perreault ((1996) 1113 C.C.C. (3d) 573), the Quebec Court of Appeal explained the difference between these words as follows:
- The element of control refers to invasive behaviour, to ascendancy which leaves little choice to the person controlled. This therefore includes acts of direction and influence. There is the exercise of direction over the movements of a person when rules or behaviours are imposed. The exercise of direction does not exclude the person being directed from having a certain latitude or margin for initiative. The exercise of influence includes less constricting actions. Any action exercised over a person with a view to aiding, abetting or compelling that person to engage in or carry on prostitution would be considered influence.
[31] Although this decision was decided under previous provisions of the Criminal Code, I am of the view that the definition of these terms should be the same. I reach that conclusion for three reasons. First, the words are the same, so as a matter of statutory interpretation it would logically flow that the definitions have not changed. If Parliament had wanted the Courts to apply a different interpretation, the words would have been changed when the section was changed. Second, the definition set out in this decision clearly identifies, and takes into account, the fact that control, direction and influence are words that lie along a sliding scale in terms of the effect that one person is having over another.
[32] Third, there are other cases that have been decided under the new provisions that adopt this definition. See, for example, R. v. Purcell (2018 ONSC 6520). In Purcell, Quigley J. stated the following with respect to influence (at para 47):
- The other two charges focus on the exercise of control, direction or influence over N.W. The case law shows that any actions exerted over a person with a view to aiding, abetting or compelling that person to engage in or carry on prostitution would be considered influence.
[33] To establish guilt under section 279.01, the Crown must show that the accused acted with the purpose of exercising control, direction or influence. However, the Crown does not have to demonstrate that the accused has achieved his or her purpose (see A.A., supra at paras. 84-86 and R. v. Urizar (2013 QCCA 46) at para. 69)
[34] This brings me to the definition of exploitation. Section 279.04 sets out a definition of exploitation, as follows:
279.04 (1) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.
(2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused
(a) used or threatened to use force or another form of coercion;
(b) used deception; or
(c) abused a position of trust, power or authority.
(3) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed.
[35] A.A., supra sets out a series of conclusions that flow from the language of section 279.04 as follows:
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; and
iii. the person’s safety need not actually be threatened.
[36] In addition, it is clear that nothing in this section (or, indeed, in section 279.01) precludes psychological pressure from meeting the conduct element of the offence. In terms of the definition of exploitation, Crown counsel raised issues of whether a drug dealer/user relationship is a position of trust, and therefore falls within the definition of exploitation. I will return to that issue when I resolve the charges against the accused.
[37] In terms of the material benefit charge, there is no definition of “benefit” in the Criminal Code. However, in R. v. Esho and Jajou (2017 ONSC 6152), MacDonnell J. of this Court considered what the word “benefit” meant. While MacDonnell J.’s analysis arose in the context of section 286.2(1), the words in the section I am required to consider are the same and the definition provided by MacDonnell J. is helpful to my analysis.
[38] At paragraph 123 of his reasons, MacDonnell J. states:
[123] The scope of s. 286.2(1) must be interpreted with Parliament’s purpose in mind and by reading the words chosen to give effect to that purpose in their grammatical and ordinary sense: R. v. Jarvis, 2002 SCC 73, at paragraph 77. Parliament has not prohibited the receipt of anything at all from a prostitute, if it is derived directly or indirectly from the provision of sexual services; what it has prohibited is the receipt of a benefit. The word “benefit” is not defined in the Criminal Code. In its ordinary sense, a benefit is an advantage or profit gained from something. Generally speaking, the receipt of something of value from someone else will be a “benefit”, but not always. If, for example, a person who has borrowed $100 from a friend pays it back without interest a week later, the friend could not be said to have gained an advantage or made a profit. The repayment would not amount to the receipt of a benefit. And if the person who borrowed the money was a prostitute and repaid the loan with earnings from prostitution the person who was repaid would not, in my opinion, have received “a financial or other material benefit… that [was] derived directly or indirectly” from a prostitution offence. Parliament’s focus on the receipt of benefits is consistent with the purpose underlying both that provision and the former s. 212(1)(j), namely to target parasitic behaviour.
[39] Finally, there is the offence under section 286.3(1) of the Criminal Code, which is commonly known as procuring. The actus reus of this offence can be established in any one of three ways (see R. v. Evans 2017 ONSC 4028):
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 sexual services for consideration.
[40] The mens rea for this offence will be established by the Crown demonstrating that the accused knows what he is doing, and intends the consequences of his or her actions.
The Evidence Relating to S.S.F
S.S.F’s Testimony
a) Background
[41] At the time of the trial, S.S.F. was 21 years old. The charges relating to her flow from events in February of 2017, when she would have been 19 years old.
[42] At the time of these events, S.S.F. was living with her grandmother in a small town outside of Ottawa. S.S.F. testified that she started using drugs at the age of 16 or 17 years old, and had done so at the suggestion of her mother. S.S.F had become addicted to drugs, specifically opiates and cocaine.
[43] When S.S.F. met the accused, she had been working as an exotic dancer in nightclubs in the Ottawa area, including on the Quebec side of the Ottawa River. S.S.F. was working with a gentleman that she referred to as Ray. The nature of the relationship between S.S.F. and Ray is not entirely clear, but does not need to be explored for the purposes of my reasons.
[44] In any event, late one evening, Ray introduced S.S.F. to the accused. Based on the evidence filed, it appears to me that this introduction was made late in the evening of February 1, 2017 or early in the morning of February 2, 2017. At the time that S.S.F. was introduced to Mr. Antoine, she was a regular user of cocaine. She was introduced to the accused through one of the names that he used, “Blue”. There is no dispute that the accused was known as Blue. He also used other names that are set out in the Agreed Statement of Fact.
[45] At the time that Ray introduced S.S.F. to the accused, she was working as a dancer in strip clubs. The money that she earned, she generally gave to Ray in order for him to hold the money because she would otherwise purchase cocaine and opiates with it.
b) The Events at the Stardust Hotel
[46] S.S.F. decided to go with the accused to the Stardust Motel in Ottawa, and provided considerable testimony at trial about the events at that hotel. At the preliminary inquiry, however, S.S.F. testified that they went directly to Toronto. When confronted with this inconsistency in cross-examination, S.S.F. stated that she was confused and didn’t remember. She also said that everything was foggy as this had happened three years ago and the drugs she was on made it that much harder to recall.
[47] S.S.F. testified that she had had a fight with her boyfriend and was upset with him the day before she met the accused. She also testified about a series of events at a local Tim Horton’s, where she was charged with assaulting a police officer. Again, the evidence on this incident was inconsistent.
[48] At the preliminary inquiry, S.S.F. testified that she had been crying in the washroom at the Tim Hortons, when an officer who did not like her family came in and gave her a hard time. S.S.F. originally testified that this officer kicked her in the ribs with his steel toed boots, and that all she did was spit on him after he had arrested her.
[49] At the end of the first day of her trial testimony, S.S.F. testified that, in addition to having spit on the officer, she also gave him a nudge. At the beginning of the second day of her testimony, S.S.F. stated that she had actually gotten into a scuffle with this officer.
[50] S.S.F. testified that she was at the Stardust Motel for two nights, being the early morning of February 2nd through to sometime on February 3rd, 2017. During that time, she stated that she met the accused’s brother, who was known as Shorty and his girlfriend Annie. Annie was also working as a prostitute. S.S.F. had an altercation with Shorty at some point in her time at the Stardust.
[51] S.S.F. testified that, when she arrived at the hotel, she was given drugs by one of the other people who was present. S.S.F also testified that, shortly after she arrived at the Stardust, the accused sexually assaulted her. This sexual assault involved full vaginal intercourse in the presence of Shorty and Annie.
[52] S.S.F. testified that the accused took some photographs of her, posted them on Backpage (which I understand is a website that allows for marketing of inter alia sexual services), and provided her with drugs.
[53] After having taken these photographs, S.S.F. testified that she began to see clients. In her evidence before me, S.S.F. testified that she did not know she was going to perform sexual services for clients until the first one walked in. She thought, up until that point, she would simply be dancing for them. However, at the preliminary inquiry, S.S.F. testified that Annie had told her what she would be doing before it happened. When asked about this contradiction on cross-examination, S.S.F. explained that what had been done to her was terrible, but that it was possible that Annie had explained things to her. S.S.F. also testified that it was two years ago, suggesting that she was having memory problems.
[54] S.S.F. testified that she spent parts of approximately a day with clients, and then fled on foot to a nearby convenience store. She was not chased by the accused, Shorty or Annie when she left. S.S.F. thought she heard the accused say let her go as she was leaving.
[55] When she fled, S.S.F. called her grandmother who arranged for a taxi to come and pick her up. The taxi took S.S.F. back to her grandmother’s house, where she remained for just more than a week.
[56] During the course of that week, S.S.F. spoke to the Ottawa police on February 8th, 2017. That statement was videotaped and was given under oath. A transcript of it was filed at trial, and I was referred to relevant portions to either refresh S.S.F.’s memory or impeach her credibility.
[57] S.S.F. testified that she could not refuse any clients in the time that she was working with the accused. However, in the statement that she gave to the Ottawa Police, S.S.F. advised that she did refuse one call at the Starlight Motel, and that the accused was angry when she did this.
c) S.S.F. Comes to Toronto
[58] S.S.F. initiated contact with the accused through Facebook on Tuesday, February 7th, 2017. S.S.F. did not testify as to the precise date, but the only Tuesday between February 3rd and February 13th, 2017 is February 7th.
[59] S.S.F. had a lengthy exchange with the accused over Facebook between February 7th and February 11th, 2017. Although S.S.F. initiated the exchange, it was clear from the outset that the accused wanted S.S.F. to come to Toronto with him. The exchange, beginning with the accused’s first text, is instructive in this regard:
ACCUSED: What your number
ACCUSED: Where are you
ACCUSED: ??
ACCUSED: I went and I invested into a whole bunch of stuff that you love now I don’t know what to do with it just here with me hurry up come back to me
TUE 11:20 AM
S.S.F: im at home pill sick
ACCUSED: Address I’ll come get you
S.S.F.: im busy at the moment wait a second plz
ACCUSED: Kk
[60] The exchange continues, on and off, until Saturday, with the accused encouraging S.S.F. to come to Toronto. The following dialogue from the Wednesday is illustrative of the tenor of the text messages the parties were exchanging over the week:
ACCUSED: Well if you serious and you really want me to come I’ll come get you
S.S.F: if im serious (im never really serious n secondly last time was interesting) i would like to give it a shot again but im not sure
S.S.F: lemme think about it
ACCUSED: I just got a new condo two bedroom two bathrooms downtown Toronto I just go the keys today would love it if you moved in with me when I get back there later I’ll take a video and send it to you
S.S.F: okie ~ dokie
S.S.F.: sounds like a fun time
[61] Ultimately, S.S.F. decides that she is going to go to Toronto with the accused. He arranges for a car to come and pick her up, and the car arrived around midnight on Saturday, February 11th, 2017. S.S.F. gave the accused the number of her drug dealer, and had asked the accused to obtain Suboxone, which her drug dealer had been providing to her to manage her cocaine addiction.
[62] S.S.F. testified that she packed her bags and waited for the accused to come. When he got there, S.S.F. ran out of the house and was chased by her grandmother. She got into the car and went to Toronto with the accused. They arrived early in the morning on Sunday, February 12th, 2017.
d) S.S.F. Works in Toronto and Returns Home
[63] When S.S.F. arrived in Toronto, she went to the accused’s condominium. S.S.F. was not sure where that condominium was, but it was in the Greater Toronto Area. She then went to work providing sexual services in hotel rooms.
[64] The Agreed Statement of Facts shows that the accused rented a number of hotel rooms during this time period. S.S.F. testified that she had worked in a number of different hotels, and that certain advertisements were posted on Backpage in this time period.
[65] In this time period, S.S.F. also stated that the accused was providing her with cocaine on a regular basis. She testified that she might have gotten a line of cocaine from one of her clients. However, she also testified that the bulk of her drugs came from the accused in this time period.
[66] S.S.F. was visited by the police on February 15th, 2017 at a hotel on Carlingview Drive in Toronto. At that time, S.S.F. told them that she did not want to leave with them. Her explanation as to why she was not prepared to leave at this point was that she needed the drugs.
[67] S.S.F. testified that she did not see any of the money from the various sexual services that she performed and that the accused kept it all.
[68] On examination in chief, S.S.F. testified that she left on February 18th, 2017 and went home to the Ottawa area. She also testified that she did not remember having any contact with the accused after that time. On cross-examination, S.S.F. was asked about this statement, and she elaborated saying that she felt that the police had rescued her on February 18th, 2017, and that she would not have wanted anything to do with the accused after this date.
[69] After that answer, S.S.F. was asked to comment on a series of messages that she had allegedly exchanged with the accused. That message string reads as follows:
ACCUSED: Crazy worried about you please message me let me know that you’re okay and that you’re safe at least do that for me please
2017-02-21, 3:51 PM
S.F.F.: police made me go back to [hometown]
S.F.F.: [corrected spelling of hometown]
S.F.F.: plus i got out on bail 4 missing my court date
S.F.F.: so im on parole until march. 6th
ACCUSED: Thank you God thank God thank God I was so worried had no idea what happened to you
S.F.F.: im fine just in trouble as usual
S.F.F: out on bail n have 2 b a good gurl for a little while
ACCUSED: When can you come back
What can I do to help
S.F.F.: Can’t come back until March.
6th
but have the money
so when I c u next I’ll hand it to you
ACCUSED: Your the best :)
S.F.F.: I try :)
ACCUSED: No really truly you’re the best
S.F.F.: :)
S.F.F.: awe
ACCUSED: I still have your bank card too
A hundred percent I’ll wait for you
S.F.F.: Can u drop it off to me or send it to me somehow
or i may have to make a new bank ard all over again
card i mean
ACCUSED: KK
Well, it’s just a temporary one I could do it way just wait for the new one in the mail
Do you think you can put the money in the bank for me
S.F.F: i can’t at the moment dude considering I don’t have my own bank card or any way on how too
kk
ACCUSED: Lol
I didn’t mean right now right now
S.F.F.: sorry just woke up over here
in a lot of pain n on strict rules
plus granny wants 2 send me to rehab
im in a bad mood
ACCUSED: :(
I feel you
S.F.F.: yea my life never gets better
Or any better XDDD its fucking terrible
ACCUSED: Take the money use it for whatever you need I’ll be here waiting patiently loyalty is royalty
I got you
Honestly don’t care how long I have to wait to you come back once you’re done everything I got your better life right here in my pocket
LOL don’t mean drugs
[70] In response to this message string S.S.F. stated that someone had hacked into her account, and that she did not remember any of this exchange.
[71] In cross-examination, S.S.F. testified that she was forced into providing sexual services for money, and was not a willing participant. However, at the preliminary inquiry, S.S.F. testified that she “was a willing participant in it until I realized I didn’t want to do it any more.” When asked about the contradiction between these statements, S.S.F. testified that she had felt pity for the accused when she testified at the preliminary inquiry.
C.F.’s Testimony
[72] S.S.F.’s grandmother, C.F. testified. She confirmed that S.S.F. had been living with her prior to February 8th, 2017. She also confirmed that she was the one who had taken S.S.F. to see the Ottawa Police on February 8th, 2017.
[73] C.F. also testified that she had been called by S.S.F. a couple of times when S.S.F. was working in Toronto, and had used the *69 feature on her telephone to figure out the number that S.S.F. was calling from. C.F. provided that information to the police, who used it to track down S.S.F.
The Accused’s Testimony
[74] The accused provided testimony about both his interactions with S.S.F. and his interactions with K.G. Although that testimony was given all at once, it is useful to divide most of it up so that the evidence can be compared and contrasted, as the evidence of the accused and the evidence of the complainants was contradictory in a number of areas. In addition, the complaints are from different time periods. For clarity, I will use the same headings in setting out the accused’s evidence as I used for S.S.F.’s testimony.
[75] Before analyzing the evidence relating to just S.S.F.’s claim, there is some evidence that relates to both complainants. It is useful to set that evidence out here. In particular, the accused provided testimony about how he earned his income. In that regard, I note as follows:
a) The accused clearly made some of his money selling illegal drugs.
b) The accused testified that he had a clothing line called blue flame. However, he also acknowledged that the business had not had much work recently.
c) The accused testified that he had a painting business, called wet paint Ottawa but, again, there had been no income in this business since at least 2015.
d) The accused was also asked about King PI. The accused stated that he had a tattoo “King” on himself. When asked what King PI was, he stated that it stood for King Painters Ingroup. It was suggested to him that it meant “King Pimp”, and the accused denied that suggestion.
[76] In terms of cell phones, the evidence of what was on these phones relates to S.S.F. and will be dealt with in the summary of the accused’s evidence on her. However, at the outset, it should be noted that the accused acknowledged that he earned money renting cell phones out to people.
a) Background
[77] The accused testified that he met S.S.F. through a friend of his named Ray. Ray called the accused one evening and asked him to swing by Ray’s place in Ottawa. The accused arrived at Ray’s apartment just after 1:00 a.m. on what would have been February 2, 2017. The accused testified, in cross, that he came to see S.S.F. because Ray had asked the accused to help her, and that Ray had been there to help the accused many times.
[78] When the accused arrived at Ray’s apartment, he met S.S.F. who then told him that she had been kicked out of a strip club for doing cocaine and for seeing a client in a back room. She told the accused that she wanted to do more escorting, and that she couldn’t do it at strip clubs.
[79] The accused continued to talk to S.S.F., and noted that she was drunk. He testified that he was concerned that she really didn’t mean what she was saying. However, the accused agreed to take S.S.F. off and get her a room so that she could sober up, and see how she felt about working as an escort in the morning. Ray gave him and S.S.F. a ride to the Stardust Hotel.
b) Events at the Stardust
[80] When they arrived at the Stardust Hotel, the accused paid for the room and went into the room with his bag, which he left there. S.S.F. also had her bag, which was left in the room. The accused confirmed that his brother and his girlfriend had a room at the Stardust, although the accused also testified that he did not see either his brother or the girlfriend before he left.
[81] After dropping S.S.F. off, the accused testified he went back to the Le Suites Hotel where he was staying with his girlfriend, Chandelle. This hotel was about fifteen minutes away. When he got to the Le Suites hotel, he talked to Chandelle and told her how he had met S.S.F. The accused testified he then returned to the Stardust Motel.
[82] The accused testified that he was returning to the Stardust Motel to get his bag and check on S.S.F. When the accused returned, he testified that he could not get into the room and thought that S.S.F. was performing escort work. The accused tried to get into the room a couple of times, but it was locked and he and the staff thought it was dead bolted, so he went to sleep in his brother’s room. The accused was finally able to contact S.S.F. using the telephone in his brother’s room at approximately 8 am.
[83] On cross-examination, the accused was asked how he was helping S.S.F. with this behavior. In particular, it was suggested to the accused that he was not really helping S.S.F. when he decided that he would go to sleep in his brother’s room. The explanation that the accused offered for this was to say that he was calling back and forth all night. He rejected the suggestion that S.S.F. had locked him out of the room because she did not want to see any more clients.
[84] When the accused saw S.S.F., she told him that she wanted to do some escorting work. The accused agreed to help her with this, and would help her to take some pictures and post the ad. The accused also told S.S.F. that he was going to Toronto.
[85] The accused testified that he went to the front desk to re-book the room, and was told that he couldn’t re-book it. He offered to take S.S.F. back to her grandmother’s house, but S.S.F. wanted to stay in Ottawa, so the accused agreed that S.S.F. could stay in his brother’s room while he went to Toronto.
[86] The accused’s plan was to go back to Toronto, drop his girlfriend off, pick up some cocaine and return to Ottawa. He was going to obtain the cocaine because S.S.F. testified that she wanted it. He was planning to meet back with her at the Stardust Motel after his trip to Toronto.
[87] The accused testified that he went to Toronto and returned to the Stardust Motel. Approximately 45 minutes before he arrived at the Stardust, the accused’s brother called him and told him that S.S.F. was leaving. When the accused returned to the Stardust, S.S.F. had left. The accused spent the day in Ottawa before returning to Toronto, and he believes that he visited his children.
[88] The accused also testified that he had taken some photographs of S.S.F. in the morning, before he had left for Toronto.
c) S.S.F. Comes to Toronto
[89] The next contact that the accused had with S.S.F. was when they had the message exchange that I have set out at paragraph 59 above. The accused testified that he did not message S.S.F. before she messaged him.
[90] The key passages of those exchanges are produced above. The accused was asked why he said that they had a good connection, and his response was that when he met S.S.F., he had wanted to help her and that she seemed like a really nice person. The accused testified that he was interested in getting to know S.S.F. better.
[91] The accused also testified that he and his girlfriend were drifting apart, and that he did not know about S.S.F.’s extensive drug use and drug habit at the time. He also testified that his feelings for S.S.F. changed when he discovered the extent of her drug addiction.
[92] The accused eventually arrives at S.S.F.’s grandmother’s house. The circumstances of S.S.F.’s departure from C.F.’s house have been described by the accused, S.S.F. and C.F. in about the same terms. The accused took S.S.F. back to Toronto in a car.
[93] The accused testified that he had hired a driver to drive him to Ottawa because his licence had been suspended.
[94] At this point in the narrative, the accused was asked in his examination-in-chief if he had ever had sex with S.S.F. up to this point. He testified that he had not had sex with her at any time during the time that they knew each other.
[95] The accused testified that, on the drive back to Toronto, he and S.S.F. discussed how the money that she was going to make would be handled and had a general discussion about escorting.
d) S.S.F. Works in Toronto and Returns Home
[96] The accused testified that, when they arrived in Toronto, they went to a condominium that the accused had rented on Air B n B on Lakeshore.
[97] Once they arrived at the condominium, the accused testified that he went to his room, and S.S.F. went to the other room and they both slept. He woke up, left the condominium and did not come back for several hours. S.S.F. woke up later in the day, and the accused told her it was too late to start that day, and they would start the next day.
[98] On the second day, which would have been Monday, February 13th, 2017, the accused testified that he came back to the condominium in the morning, and S.S.F. stated that she wanted to get started. S.S.F. did her makeup and then the accused booked a hotel room for her.
[99] At this point, an ad was created. The accused testified that S.S.F. chose which photographs were going to be used, and that she used the accused’s phone in order to post the advertisements on Backpage.
[100] In terms of S.S.F.’s telephone, the accused also testified that she wanted a new telephone number for these advertisements, and did not want to use her personal cell phone. As a result, the accused gave S.S.F. a SIM card. I note that there was considerable evidence about cell phones in this case, and this is an appropriate place to address that evidence.
[101] When the accused was arrested, five separate cellphones were seized. The accused alleges that only two of those cellphones were his, and the remainder were his girlfriend Chandelle’s. I reject that evidence, and conclude that all five of the cellphones belonged to the accused. I reach that conclusion for the following reasons:
a) There was personal information relating to the accused and his businesses on each of the cell phones.
b) The telephone that the accused claimed was Chandelle’s had significant information relating to the accused’s business on it, as well as information relating to S.S.F. on it. Given the accused’s own testimony about the limited interactions between Chandelle and S.S.F. it is unlikely that information pertaining to S.S.F. would have been on Chandelle’s cell phone.
c) The accused testified that he earned income renting out cell phones. It is therefore a logical inference to draw that he would have had several cell phones.
[102] The accused testified that, once S.S.F.’s advertisement went live, he left the hotel room. He returned to the hotel room later in order to sell cocaine to S.S.F. This transaction of purchasing cocaine took place several times over the course of the next couple of days.
[103] At one point, the accused became tired of receiving calls from S.S.F. and having to go back to the hotel on a regular basis to provide her with cocaine. As a result, when S.S.F. and the accused went out for something to eat, the accused hid some cocaine in different spots in the hotel room. Every time S.S.F. called to confirm that she had money for cocaine, the accused would tell her where he had hidden the next package.
[104] In cross-examination, the accused acknowledged that he provided cocaine to S.S.F. on a daily basis. When he was asked whether he knew that S.S.F. was a drug addict, he was evasive, saying that he knew lots of people who use cocaine but were not addicts.
[105] The accused testified that, when he went back to the hotel to pick S.S.F. up, she owed him $300.00 as well as owing him for the hotel room. At this point, S.S.F. moved to a different hotel room, which was booked for two days. S.S.F. did not have money for drugs at this point, but the accused testified that he was concerned that she was going through withdrawal and might be sick. He testified that he obtained an oxy pill for her as well.
[106] The day after S.S.F. had moved to a new hotel, which is the day that S.S.F. left with the police (February 18th, 2017), the accused was called by S.S.F. a number of times. S.S.F. told the accused that she had the money he owed her. The accused did not believe S.S.F.
[107] On February 18th, 2017, the accused went to the hotel room where S.S.F. had been, and discovered that she had left. The accused called her cellphone, heard it ringing and retrieved it from the room. The accused testified that he was upset because he was out money.
[108] He then testified that he had the text message exchanges with S.S.F. that are outlined above.
[109] One final fact should be noted. On one of the cell phones that was seized at the time of the accused’s arrest, there was a video of an accused having a telephone conversation with his girlfriend, Chandelle. It was a conversation that appears to have taken place on February 15th, 2017. In that conversation, the accused expresses concern about the fact that the new girl had given the police his name. The accused acknowledged, in testimony, that it was him on the video.
The Evidence Relating to K.G.
K.G.’s Evidence
a) Background
[110] The second complainant, K.G. started using drugs when she was fourteen (14) years old. She graduated from high school, and studied office administration in College, but did not complete her diploma. She had a child at eighteen, and was sober for two years. She started using drugs again in the spring of 2015.
[111] She had worked in the sex trade starting at age 16, before the birth of her child, and went back to that work when her child was approximately a year old. K.G. had a friend, K.C., who is the sister of the father of K.G.’s son. In the summer of 2015, K.G and K.C. spoke about escorting, as K.C was working in Toronto.
[112] K.C. told K.G. that the money was better in Toronto, and that she was working with the accused. K.G. decided that she would come to Toronto with K.C. and work as an escort. She travelled to Toronto on the bus, and is not sure who paid for the bus tickets.
[113] On K.G.’s first trip to Toronto, she had a brief conversation with the accused, and discussed working with him. The accused was going to be responsible for getting her room, making advertising posts and the like. They also discussed that the money would be split in half. However, K.G. also testified, in cross-examination, that there was no agreement about how the money was going to be split from her work.
[114] On this first night, the accused posted the advertisement for K.G., but K.G. recalled writing the content of the advertisement. The cell phone that was used was someone else’s cell phone. On this first night, K.C. was going to obtain the drugs, as K.G. was not familiar with Toronto, although she had been to Toronto previously.
[115] On the first night, K.G. kept the money. She also got into an argument with K.C. over the drugs. The argument concerned the fact that K.C. tried to keep most of the drugs, and that K.G. felt that she was getting ripped off. As a result, K.G. decided to return to Northern Ontario. When K.G. returned to Northern Ontario, she continued to work as an escort.
[116] In terms of this argument between K.G. and K.C., K.G. also acknowledged on cross-examination that she doesn’t like getting ripped off and that is why she argued with K.C. K.G. also agreed that she is the type of person who will speak up when she is getting ripped off.
b) K.G.’s Lengthy Stay in Toronto
[117] After a couple of days in Northern Ontario, K.G. contacted the accused and came back to Toronto. K.G. testified that she wanted to come back to the Toronto area because the money that she made on the first night had been better than the money she was making in Northern Ontario.
[118] On her return to the Toronto area, K.G went and worked in a two bedroom condominium that was in the Hurontario and Eglinton area. K.G. testified that there was no set amount that the accused was charging her for the use of the condominium. On cross-examination, K.G. acknowledged that she was happier working in a condominium because she would get a higher class of clientele and would get more clients.
[119] She also testified that advertisements were prepared, and that she had a say as to what went into those advertisements. In terms of the money, K.G. testified that the accused had holding on to the money at his suggestion. K.G. thought that the accused was going to help her reach her goals, such as obtaining a car and providing for her son.
[120] K.G. acknowledged that she was familiar with Backpage, but did not have a cell phone with which to post advertisements on Backpage. She also testified that the accused provided her with a cell phone, and provided her with Bitcoin so she could post on Backpage.
[121] In terms of the services she provided, K.G. acknowledged that she had restrictions on what she was prepared to do, and that the accused agreed to those restrictions. K.G. also acknowledged that the restrictions were included in the advertisement that was posted.
[122] K.G. testified that her rates were approximately $80.00 for 15 minutes, $150.00 for a half hour and $250.00 for an hour. She would sometimes receive tips and/or drugs from clients. K.G. testified that, when clients visited they would pay her, and that she would then put the money in a drawer in the kitchen. The accused would then take the money out of the drawer in the kitchen and would keep it.
[123] K.G. also testified that, if she had a client, she would receive an oxycodone pill from the accused. In terms of the days that K.G. did not want to work, she testified as follows:
a) She would work in order to be able to get the oxycodone. She testified that, on days when she did not work, she would only get an oxycodone pill sometimes.
b) On days when she did not want to work, the accused would “make a plan” with her for her to just see one or two clients and then rest.
c) On days when K.G. did not want to work, the accused would also discuss her child and encourage her to work for her child. The accused would also tell K.G. that they were going to send money to K.G.’s mother, but none was ever sent. K.G. testified that, every time that the accused spoke to her about her child and her mother, K.G. would go back to work.
[124] K.G. also testified about a health issue that she had for several days during the time she worked for the accused. In particular, she testified that she had a makeup sponge stuck in her cervix, which created medical issues. She testified that she had placed the makeup sponge in her cervix during her menstrual cycle in order to ensure that she could keep working.
[125] On that occasion, the accused told K.G. to relax and take a bath. The sponge did not come out, so K.G. went to Northern Ontario to have it taken care of. The accused drove K.G. to Northern Ontario, and she spent a night or two there. After this problem had been taken care of, K.G. returned to the condominium and continued to work for the accused.
[126] K.G. testified that, when she was at the condominium there were other girls who would stay in the condominium as well. K.G. testified that the other girls would also put their money into the drawer in the kitchen. K.G. also testified that there was some tension between the girls in the condominium and that this tension is why she was sometimes sent to work in a hotel.
[127] In cross-examination, K.G. testified that in addition to working in Toronto, she had also worked in Ottawa and London. When K.G. worked in Ottawa, she testified that she was working at an apartment. The police visited that apartment, and K.G. told them that she was there on a trip and was staying with a friend.
[128] On the occasions that K.G. worked at a hotel, she testified that the accused paid for the first few hotel rooms, but that she subsequently paid for them out of the money that she earned as soon as she started making money.
[129] K.G. testified that she did not receive any money from the accused unless she needed medicine when she went to the doctor’s. The accused provided food at the condominium, and generally K.G. could not take money and spend it at the store.
[130] In cross-examination, K.G. acknowledged that she had gone shopping at Square One on her own in the first week that she was in Toronto. On that occasion, she spent $200.00. She testified that she had not obtained this money directly from clients, but had obtained it from the accused. K.G. also acknowledged that she had gotten her nails done on one occasion.
[131] In cross-examination, it was suggested to K.G. that she had provided money to the accused because she owed him for drugs, the hotel room, rent and posting the advertisements. In response, K.G. stated that she had never had any rental agreement with the accused.
[132] K.G. also testified that she had gone back and forth between Toronto and Northern Ontario several times in the few months that she worked with the accused. When she was in Northern Ontario, K.G would work in the sex trade, and would keep the money.
[133] In cross-examination, it was also suggested to K.G. that, after paying these expenses, she kept the money that she earned when she was working in Toronto too. Each time she was asked this question, K.G. responded that she did not get to keep the money.
[134] In her cross examination, K.G. readily agreed (on more than one occasion) that she was happy with the money that she was making at the time. However, K.G. also went on to say that she did not get to keep any of this money.
[135] K.G. also testified that she was in receipt of Ontario Works payments. However, she also testified that the accused had access to her bank account and would on occasion take her Ontario Works money as well as her earnings from providing sexual services.
[136] In December of 2015, K.G. went back to Northern Ontario and went to the police. The return to Northern Ontario was precipitated by watching K.C. and the accused have a fight, in which K.C. was trying to obtain her cell phone from the accused. The visit to police was precipitated by K.G.’s mother. K.G. candidly acknowledged on cross-examination that she felt that, if she did not report the circumstances to the police, her mother would not allow her to see her child.
c) The Time in Toronto After the Police Report
[137] When K.G. went back to Northern Ontario, she was spending part of her time with her mother. K.G.’s mother was parenting K.G.’s child, and K.G. testified that she did not have a good relationship with her mother.
[138] As a result of that, and as a result of the fact that K.G. wanted to make money, she returned to the Toronto area to work with the accused again. It was not clear how long K.G. was in Toronto in this second visit, but the arrangements appear to have been much the same.
The Accused’s Evidence
[139] As I have noted above, the accused’s testimony contradicts K.G.’s testimony in a number of material respects. As a result, I have set it out using the same headings that I used for K.G.’s testimony.
a) Background
[140] The accused testified that he met K.G. through K.C. K.C. was best friends with the accused’s girlfriend at the time. This meeting took place in August of 2015 when the two women came to the Toronto area.
[141] The accused testified that he provided K.C. with the money to travel to Toronto, but he did not provide K.G. with any money for travel. The one exception is, in the Agreed Statement of Facts, it is noted that the accused transferred some money to K.G. While the reasons for the transfer of this money are not an agreed fact, I find that the purpose of this transfer was to provide funds for K.G. to travel back to Toronto.
[142] During K.G.’s first visit to Toronto, the accused took photographs of K.G. He testified that he charged $50.00 for taking these photographs, and that K.G. had agreed to pay him for the photographs. The photographs were taken with the accused’s Samsung Edge 6.
[143] Once the pictures were taken, the accused testified that K.G. posted an advertisement on Backpage using his cell phone. The accused testified that he paid for this ad using bitcoin, and then had K.G. pay him back for the bitcoin. The accused did not have any involvement in the creation or content of the advertisement, as K.G. knew what she was doing and how to do it.
[144] The accused also testified that K.G. rented a phone from him, and that he had a bunch of spare phones that he would rent out to people. He stated that the rental rate is $5.00 per day.
[145] At the end of this first night, K.G. stated that she was not making as much money as she had expected. The accused told her all the things that he was charging for her, but told her to forget it and that he would call it a loss. K.G. had enough money for a bus ticket, so the accused called for a driver for her and she went back to Northern Ontario.
b) K.G.’s Lengthy Stay in Toronto
[146] The accused testified that he next heard from K.G. about a week later. K.G. contacted him through Facebook, and it was K.G. who initiated the contact.
[147] The accused testified that K.G. wanted to rent one of the rooms in his condominium because she had heard through friends that the accused provided that service. The accused told K.G. that he was prepared to let her do that, and that the rate would be $250.00 per day. On the original visit, K.G. told the accused that she wanted to rent the condominium for four days. K.G. generally did not spend much time at this condominium and testified that he did not live in this condominium at the time that K.G. was working out of it.
[148] On this visit, the accused also testified that he rented one of his cell phones to K.G., and that she continued to buy bitcoins off of him. Towards the end of the first full day that K.G. was at the accused’s condominium and contacted the accused to purchase some cocaine, which the accused sold to K.G.
[149] In terms of this first visit to his condominium, the accused testified that K.G. purchased drugs from him on approximately four occasions and that she had asked to extend her stay until seven days. She paid everything that she owed to the accused, and went home after seven (7) days.
[150] The accused testified that a few days afterwards, K.G. contacted the accused again through Facebook and asked if she could use his condominium again. The rates were the same, and the accused testified that she left the money for him from the condominium rental in the drawer in the kitchen and the accused would pick it up every morning.
[151] Both of these visits were in September. The accused testified that K.G. returned in October and that she stayed a little longer than a week. He testified that K.G. was back and forth to Northern Ontario in this time period on a number of occasions.
[152] The accused testified that he never bought makeup sponges for K.G. and that he did not tell her to use them so that she could stop her period. He did understand that K.G. had a health issue at some point and that she needed medical attention.
[153] However, the accused testified that he did not ever drive K.G. to or from Northern Ontario. The accused testified that, on occasion, K.G. asked him for money and that he lend her money for bus tickets and drivers.
[154] The accused also testified that there were other girls who would use the condominium at the same time as K.G. was in it. He confirmed that he booked a hotel for K.G. to use on at least one occasion, and that he rented a hotel room for her in London as well at some point.
c) The Time in Toronto After the Police Report
[155] The accused testified that K.G. went home to Northern Ontario at some point in November of 2015. He testified that she came back to the Toronto area in March or April of 2016. K.G. contacted the accused on Facebook and asked about renting the condominium. The accused told K.G. that he did not have the condominium any more.
[156] The accused testified that K.G. asked if he could help her get a room. He agreed to rent a room for her.
Admissibility of Evidence Count-to-Count
a) The Legal Framework
[157] In this case, the count-to-count admissibility question deals with the issue of whether the evidence from K.G. can be considered in the charges relating to S.S.F. and vice versa.
[158] My consideration starts with the Supreme Court’s decision in R. v. Handy (2002 SCC 56), in which Binnie J. sets out the approach that trial judges must adopt in considering the admissibility of similar fact evidence. That decision sets out a four step analytical framework:
a) The evidence must be adduced for a specific issue. Evidence going to show, generally, that the accused is of bad character is not admissible. Therefore, the proposed use of the evidence should be defined.
b) The Court must then consider the issue of whether any collusion, or potential collusion, might undermine the improbable coincidence or coincidences.
c) The similarities and differences in the evidence must be considered by the Court. This is not merely an accounting exercise. Instead, the Court must consider the entire picture. At a micro level, many of the facts will appear different. At a macro level, many of the facts will appear the same. (see R. v. Shearing 2002 SCC 58)
d) The Court must consider the strength of the evidence.
[159] In this analysis, it is important to remember that the count-to-count evidence is prima facie inadmissible. It is up to the Crown to prove, on a balance of probabilities, that this evidence should be admitted on each count (Handy, supra, at para 55).
[160] In evaluating the degree of similarity in the acts, Handy, supra sets out a list of criteria to consider (at para. 82), as follows:
a) Proximity in time of the similar acts.
b) The extent to which the similar acts are similar in detail to the charged conduct.
c) The number of occurrences of the similar acts.
d) The circumstances surrounding or relating to the similar acts.
e) Any distinctive features unifying the incidents.
f) Intervening events.
g) Any other factor which would tend to support or rebut the underlying unity of the similar acts.
[161] As Hill J. notes in R. v. Johnston (2011 ONSC 195 at para 137), the assessment of similarities requires the judge to closely consider the existence of material dissimilarities between the incidents. The stronger the similarities, the attendant dissimilarities may not be as significant.
[162] In Handy, supra (at para 110), collusion or the potential for collusion is viewed as being more than just another factor in the analysis. The cogency of similar fact evidence is derived from the fact that the coincidences are improbable, which makes collusion (or the potential for collusion) critical in the analysis.
[163] Finally, I note that this is not an identity case. As a result, my analysis is different than it would be in an identity case.
b) Application to This Case
[164] I start by noting that, from afar, these two cases appear to be similar. When considered very closely, they appear to be different. Part of the difficulty that trial judges face with deciding whether to admit similar fact evidence is how closely they should consider each case in deciding whether they are sufficiently similar that the Crown.
[165] Therefore, it is important to start the analysis by determining the precise issue in question. In her argument, Crown counsel stated that the admissibility of the evidence is warranted to establish the actus reus, to negate the accused’s defence of denial and innocent association, and to rebut any motive to fabricate on the part of the complainants, as the accused has questioned their credibility.
[166] The evidence clearly has probative value in this case. This brings me to the prejudicial effect of the evidence. The risks of prejudice in this case is lessened, as this is a judge alone trial. However, the risk of both types of prejudice continue to exist. In particular, the alleged use of addictive drugs as a lure to both complainants raises the specter of conclusions on general propensity.
[167] Then, there is the issue of collusion or potential collusion. In this case, the two Complainants were in contact with the accused at different times and they come from different areas of the province. As a result, there is no evidence of an opportunity to collude on the record. In addition, there was no real suggestion in cross-examination that the witnesses were colluding. As a result, I am not concerned about any potential collusion in this case.
[168] This brings me to the similarities and differences in the evidence. In this case, the similarities between the testimony of the two complainants are as follows:
a) The accused met both complainants through third parties that he knew.
b) The accused sold both complainants drugs while they were providing sexual services.
c) The accused provided both complainants with telephones for the purposes of posting their advertisements.
d) The accused rented hotel rooms for both complainants.
e) There is a similarity in the narrative between both complainants that the accused was keeping all of the money from the work that they performed.
[169] The differences between the testimony of the two complainants are as follows:
a) S.S.F. alleges that a sexual assault took place. In this type of case, a sexual assault would be a particularly pernicious form of physical violence that can be used as a form of control. Such an allegation was not made by K.G.
b) S.S.F. testified that there was a lengthy dialogue over Facebook where the accused was arguably attempting to persuade S.S.F. of the advantages of coming to Toronto. This type of communication did not exist in the case of K.G.
c) S.S.F. testified that the accused travelled from Toronto to the Ottawa area to pick her up. In K.G.’s case, she came to the Toronto area on her own.
d) S.S.F. testified that she was moved around to a number of hotels and worked on her own. K.G. testified that she spent most of her time working in a condominium and that there were other girls working in the same condominium from time to time.
e) S.S.F. was involved with the accused for less than three weeks. K.G. was involved with the accused for several months.
f) The accused would persuade K.G. to keep working by mentioning her child and her mother. These techniques were not used on S.S.F.
[170] Having set out the similarities and differences, these must be weighed against the Handy, supra factors set out at paragraph 160. In that regard, I start by noting that the incidents are a year apart. In my view, this is a neutral factor. They are not so far apart as to be unrelated, but they are not so close together as to be obviously related.
[171] The key factor in this case is the extent and nature of the similarities. When the list that I have set out at paragraph 168 is considered, it is clear that the similarities in this case are of the broad outlines of the offence only. The biggest similarity is that the accused recruited two young women who were drug addicts and vulnerable as a result of their addictions to work in prostitution. This is, unfortunately, not an atypical pattern.
[172] In my view, it is also not enough to justify admitting otherwise inadmissible evidence. This is especially true when the differences in this case are considered. Of the list I have set out above, the most significant ones are the sexual assault that S.S.F. alleges took place and the efforts to have her come to Toronto that were set out in the Facebook messages. These two allegations make the alleged recruitment of S.S.F. by the accused quite different from what allegedly happened with K.G.
[173] In the circumstances, therefore, I find that the similar fact evidence is not admissible between counts of the indictment. I will consider the charges relating to each complainant separately.
Analysis and Disposition of the Charges Relating to S.S.F.
[174] In conducting this analysis, and in the analysis on the disposition of the charges relating to K.G., it is important to remember that I am required to conduct what is commonly known as a W.D. analysis. This requires me to consider whether I believe the evidence of the accused, or whether I cannot decide who to believe. If I do not believe the evidence of the accused, I must consider whether it leaves me in a state of reasonable doubt. Finally, if I do not believe the accused, and his evidence does not leave me in a reasonable doubt, I must consider whether the evidence, taken as a whole, leaves me in a state of reasonable doubt. I will apply those principles to the charges relating to both complainants.
[175] In considering the charges relating to S.S.F., the extent of the accused’s knowledge as to whether S.S.F. was a drug addict needs to be resolved. The accused claims that he did not know until later on that S.S.F. was a drug addict.
[176] I reject that evidence for the following reasons:
a) The manner in which the accused met S.S.F. suggests that he knew that S.S.F. had a significant drug problem. She had just been thrown out of a strip club for doing cocaine in the back room while working. In addition, on the accused’s own evidence, S.S.F. was sick enough and high enough that the accused was not prepared to help her provide sexual services until the morning when she had sobered up.
b) The accused knew that S.S.F. was pill sick from text messages exchanged at the outset of their conversation. This would suggest that the accused was well aware that S.S.F. was a drug addict from the time he began to recruit her.
c) When the accused was going to get S.S.F. on Saturday February 11th, he knew that S.S.F. had a local drug dealer, and that she needed to obtain Suboxyne in order to manage her addiction.
d) The accused provided S.S.F. with a significant amount of drugs over the course of the week that she was in Toronto.
[177] There are other significant issues with the accused’s testimony that I will return to when I resolve each of the counts of the indictment.
a) The Charges Relating to Trafficking in Persons
Count 1- Trafficking in Persons
[178] I start with the charge under section 279.01. As noted at paragraph 27, the Crown must establish that the accused exercised control, direction or influence over the movements of S.S.F. and that he did so for the purpose of exploiting or facilitating her exploitation.
[179] In terms of control, direction or influence, the accused argues that S.S.F. was not a weak person, and was not easily controlled. He also argues that the accused made the decision to engage in prostitution and that he was merely “helping” her by providing her services.
[180] I reject that argument. I conclude, beyond a reasonable doubt, that the accused exercised, at a minimum, influence over S.S.F. to have her work as a prostitute, and to work for him in Toronto. I reach that conclusion for a number of reasons.
[181] First, there is the accused’s testimony. On this issue, I do not believe it and it does not leave me with a reasonable doubt. The accused’s testimony with respect to S.S.F. is both internally inconsistent and inconsistent with the documents that were filed as evidence.
[182] In that regard, I note the following (in addition to the points noted above):
a) The accused’s evidence about the sequence of events at the Stardust Motel is inconsistent. If the parties were there for only one night, then the accused’s testimony that he went back and forth between this hotel and the Le Suites, took pictures of S.S.F., drove to Toronto and obtained cocaine for S.S.F. takes too much time to have happened while they had a hotel room for part of one night and checked in after 1:00 a.m.
b) The accused’s evidence about who was using the cellphones is, as noted at paragraph 101, inconsistent with the information retrieved from the cell phones.
c) The accused’s evidence about wanting to have a relationship with S.S.F. because he and his girlfriend were drifting apart is also not believable. Other than his Facebook messages to S.S.F., there is no evidence that the accused had any interest at all in S.S.F. He did not spend any time with her when they came to Toronto, and there were no other indicia of any relationship or effort to build one.
[183] Accordingly, I reject the accused’s explanation that he was simply helping S.S.F. with her desire to work as an escort.
[184] The accused says that S.S.F. was willing to work in the sex trade until she decided on February 18th, 2017 that she didn’t want to do it any longer. At that point, she left. S.S.F.’s testimony on this point was equivocal.
[185] The accused is using this evidence to suggest that participating working in the sex trade was entirely S.S.F.’s decision. I reject that argument. It is clear that S.S.F was willing to work in the sex trade because it provided her money in order to satisfy her drug habit.
[186] The accused was well aware that S.S.F. had an addiction, and he provided her with drugs to feed that addiction. The drugs were only provided after S.S.F. had earned money from performing sexual services for clients. Indeed, in one example described at paragraph 103, on the accused’s own evidence he hid drugs around S.S.F.’s hotel room and when she called to ask for drugs after performing sexual services, he would tell her where one cache of the drugs was each time.
[187] From this evidence, I conclude beyond a reasonable doubt that the accused was exercising influence over S.S.F. to have her work in the sex trade. This influence was exercised by the accused over S.S.F. in two ways. First, by persuading her to come to Toronto with the promise of a better life. Second, when she arrived in Toronto by providing her with drugs after she had performed sexual services.
[188] This brings me to the second part of the test for this offence, whether the accused was engaged in this activity for an exploitative purpose. I start by noting the accused’s argument that S.S.F. kept all of the money that she earned, and that he was out of pocket for the hotel room and the drugs at the end of the week. As noted at paragraph 33, the fact that the accused did not achieve an exploitative purpose does not mean that he did not have the necessary intent for this crime.
[189] There are two ways in which the Crown could establish exploitation on the part of the accused. First, the Crown could establish that the accused used force “or another form of coercion” in having S.S.F. work in the sex trade in exchange for drugs. It would be “another form of coercion”, rather than force that would apply on the facts of this case.
[190] Second, Crown counsel raised the issue of whether a drug dealer/ drug user issue could amount to a relationship of trust, power, or authority. The Crown’s position is based in part on the decision in R v. A.H. ([2000] O.J. No. 3258). In that decision, the Ontario Court of Appeal noted (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.).
[191] This decision was considered in the context of a certiorari application by Di Luca J. of this Court in R v. Mohylov (2019 ONSC 1269). In that decision at paragraph 36 and 39 Di Luca observed as follows:
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.
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.
[192] When these decisions are considered together, it is clear that the relationship of dependency between a drug dealer and a drug addict can be used by the drug dealer to exploit the addict, and have her engage in sexual services in exchange for money to purchase drugs.
[193] I am of the view that, using either of these approaches, the Crown has met its evidentiary burden of proving an exploitative purpose beyond a reasonable doubt. The accused knew that S.S.F. was an addict, and used the promise of more drugs and a better life in Toronto to have her perform sexual services. The facts supporting this conclusion are set out at paragraph 176. In addition there is the video described at paragraph 109. That video demonstrates to me that the accused knew that the police linking him to S.S.F. would be problematic. I find that this video supports the conclusion that the accused was engaged in activity that he knew would likely be caught by section 279.01. Either way, the accused intended to exploit S.S.F. through her drug addiction.
[194] This brings me to the argument advanced by defence counsel that there was no basis, on either a subjective or objective standard, for S.S.F. to fear for her safety. This argument also fails. A.A., supra makes it clear that S.S.F.’s safety did not actually need to be threatened. In addition, as I noted at paragraph 36, there is nothing in section 279.01 that precludes psychological pressure from meeting the conduct element of the offence.
[195] In this case, it is reasonable to infer that S.S.F. would have feared for her psychological or physical safety if her drug supply was cut off. Indeed, the fact that she was willing to go back to work with the accused after having been sexually assaulted (on her evidence) and having fled from the accused suggests that this is the only reasonable inference that can be drawn.
[196] Further, Defence counsel is correct that I must consider all of the circumstances. As I have noted both above, and at paragraphs 202 and 203 below, there were frailties with S.S.F.’s evidence. However, the circumstances as a whole show a young girl with a significant addiction being lured to Toronto from a small town outside of Ottawa with the promise of a “better life” if she would perform sexual services. A significant part of that “better life” was a regular supply of drugs in exchange for performing the sexual services. It is, therefore, clear beyond a reasonable doubt that the accused both intended to induce the complainant to provide sexual services in exchange for drugs, but intended to profit from that activity at S.S.F.’s expense.
[197] Therefore, I am satisfied beyond a reasonable doubt that the accused exercised influence over S.S.F. for the purpose of, and with the intention of, exploiting S.S.F. to have her provide sexual services in exchange for drugs. This was done for the accused’s advantage, and he intended to keep for himself all of the proceeds from the sexual services performed by S.S.F.
[198] Accordingly, a conviction will be entered on the first count on the indictment.
Count 2- Material Benefit
[199] The three requirements for this offence to be made out are set out at paragraph 28, above. I have already concluded, beyond a reasonable doubt, that the prohibited conduct in section 279.01 occurred. It is also clear that, if the accused received a material benefit, then it was derived from the commission of the offence of trafficking in persons.
[200] The key issue on this count is whether the accused received a material benefit. The accused’s evidence is that he was out money, and had taken a loss, through the drugs that he provided to S.S.F. and the rooms that he had paid for. As a result, the accused argues that this provision is not met.
[201] S.S.F. testified that she did not get to keep any of the money. The problem with that testimony is the string of text messages set out at paragraph 69, S.S.F. denied sending these text messages, and claimed that this account was hacked.
[202] I reject S.S.F.’s evidence on this point, and conclude that these messages were sent and received by her, for the following reasons:
a) The facts about S.S.F. being on probation as recorded in these messages accord with the evidence given at trial.
b) The person who had “hacked” the account had knowledge of where S.S.F. was, where she had been, and the fact that she had lost her bank card.
c) The tone of the messages is similar to the messages that S.S.F. sent before going to Toronto.
d) The explanation that S.S.F.’s account was hacked was not supported by any other evidence.
[203] This deals with the question of whether a material benefit was received when S.S.F. was working in Toronto. The question then is whether the accused received a material benefit while S.S.F. was in Ottawa. This requires me to consider, in some detail, the evidence of S.S.F. In that regard, I note the following inconsistencies:
a) Most significantly, S.S.F. gave inconsistent testimony about whether she travelled to Toronto or to a hotel in Ottawa on her first meeting with the accused.
b) S.S.F provided inconsistent evidence about her circumstances in the day before she met the accused. In particular, her descriptions of her interactions with the police officer in the Tim Horton’s were inconsistent.
c) S.S.F. acknowledged, on more than one occasion, that she was having difficulty remembering the evidence as it was two years ago, and her memory was foggy.
d) Unlike for the events in Toronto, I have no evidence (such as Facebook exchanges, text messages or Backpage advertisements) to corroborate anything that happened at the Stardust Motel.
[204] Based on those frailties, I simply cannot find beyond a reasonable doubt that the accused received a material benefit from any sex trade work that S.S.F. performed in Ottawa.
[205] For the foregoing reasons, I cannot conclude beyond a reasonable doubt that the accused received a material benefit from the commission of a trafficking in persons offence. As a result, an acquittal will be entered on the second count of the indictment.
Count 3- Procuring
[206] Both the mens rea and the actus reus for this offence are similar to the offence under section 279.01. In this case, the factual findings I have made with respect to the other two offences apply equally here.
[207] Given that finding, it is clear that the actus reus of this offence has been proven beyond a reasonable doubt. It is clear from the conclusions that I have set out above that the accused exercised at least influence over the movements and actions of S.S.F in order to have her provide sexual services for consideration. As a result, the method of demonstrating that the accused committed the actus reus of this offence is the method outlined in paragraph 39 (c), namely exercising control, direction or influence over the movements of a person who offers or provides sexual services for consideration.
[208] This brings me to the mens rea for this offence. In considering the charges under 279.01, I already made findings on what the accused’s purpose and intent was in this case. The same findings apply here.
[209] For the foregoing reasons, I am persuaded beyond a reasonable doubt that the accused is guilty of this offence. As a result, a verdict of guilty will be recorded on the third count of the indictment.
b) The Assault and Sexual Assault Charges
Counts 4 and 5- Sexual Assault and Assault
[210] I have set out my significant concerns with the accused’s evidence as a whole in the previous section. Again, I do not believe the accused’s evidence regarding the sexual assault, and that evidence does not raise a reasonable doubt. I reach that conclusion for the following reasons in addition to the concerns set out above:
a) As noted above, the accused’s evidence that he had travelled ten hours to Toronto and back to obtain cocaine for S.S.F. is not believable.
b) Similarly, the accused’s evidence that he had been trying to get into the room where S.S.F. was staying on the night that she was there because he wanted to check on her is also not believable. It is more likely that he was, as S.S.F. testified, trying to have her see more clients or possibly that he was simply sleeping in his brother’s room.
c) The accused’s evidence in terms of the timing of the events at the Stardust Motel is, as noted above, also internally inconsistent.
[211] However, as I have noted in the previous analysis, there are also frailties in S.S.F.’s testimony. Some of those frailties relate to her memory, and some of them relate to her presentation as a witness. In terms of her presentation as a witness, in particular, I note that S.S.F. answered many questions from the accused’s counsel with “I don’t know”, and did so in a tone and manner that suggested that she was not willing to answer the question, rather than being unable to answer the question.
[212] In terms of S.S.F.’s memory, I have noted a series of problems with her memories, some of which relate directly to this incident. In particular, S.S.F.’s confusion over where the parties went, along with her memory problems and her unwillingness to answer questions on cross-examination in a forthright manner leave me in a state of reasonable doubt.
[213] Given the frailties in S.S.F.’s testimony, I am left with a reasonable doubt over whether the assault and the sexual assault actually took place. As a result, a verdict of not guilty will be entered on counts four and five of the indictment.
Analysis and Disposition of the Charges Relating to K.G.
[214] There are three counts that relate to the accused’s involvement with K.G. I repeat and rely upon the comments that I made about the accused’s credibility as it applies to the counts relating to S.S.F. The accused has fundamental issues with his credibility (which I will set out in this section) that mean that I do not believe his evidence, and it does not raise a reasonable doubt on any of the offences with which he was charged relating to K.G.
[215] This brings me to the specific counts relating to K.G.
Count 6- Trafficking in Persons
[216] As noted at paragraph insert, the Crown must establish that the accused exercised control, direction or influence over the movements of K.G. and that he did so for the purpose of exploiting or facilitating her exploitation.
[217] In terms of control, direction or influence, the accused argues that K.G. was not a weak person, and was not easily controlled. He also argues that the accused made the decision to engage in prostitution and that he was merely “helping” her by providing her with services so she could do her work.
[218] I reject that argument. I conclude, beyond a reasonable doubt, that the accused exercised, at a minimum, influence over K.G. to have her work as a prostitute, and to work for him in Toronto. I reach that conclusion for a number of reasons.
[219] I start with the evidence of K.G. She gave her evidence in a straightforward way, acknowledged the flaws in her evidence without any argument or evasiveness, and set out her explanation of what had happened in clear and simple terms.
[220] This brings me to the argument advanced by the accused that K.G. would stand up for herself and would not tolerate being cheated by anyone. In support of this argument, the accused points to the fight that K.G. had with K.C. on her first night in Toronto. It is clear that this fight was motivated by K.G.’s belief that she was being cheated in terms of the amount of drugs that she was to receive.
[221] I acknowledge that K.G. had strength to her personality. However, I am of the view that the accused still exercised (at a minimum) influence over K.G. to have her work in the sex industry. In support of that conclusion, I note:
a) The accused clearly exercised influence over K.G. to have her continue to provide sexual services, even on days when she did not want to. He did this in two ways. First, by making a plan with K.G. for her to service one or two customers. Second, when K.G. did not want to work, the accused would remind her of her mother and her child, and encourage her to work for them.
b) The fact that K.G. is prepared to get into an argument with K.C. over the division of drugs does not mean that she would have gotten into an argument with the accused over the division of money. The circumstances, when considered as a whole, are different. The argument with K.C. was over one visible, tangible incident. The issues with the accused arose over a period of time, when promises were being made.
c) The accused was more indirect than K.C. about his appropriation of her earnings. Indeed, on occasions, he would suggest to her that she should keep working because they would send money to her mother.
[222] This brings me to the accused’s argument that he was simply charging rent for the condominium, the drugs that she was using, and her cell phone. I reject these arguments for the following reasons:
a) The accused’s testimony was that he charged K.G. $250.00 per day for the condominium rental. He testified that this money was left in a drawer for him every morning. I reject that evidence. Instead, what was being left in the drawer every morning for the accused were the entire proceeds of K.G.’s work from the previous day.
b) If the accused was simply renting out the condominium, he would not be concerned about making sure that K.G. was working every day. I find that he was concerned about making sure that K.G. was working every day.
c) If the accused was simply renting out the condominium, he would not have sent money to K.G. to have her come back to Toronto by bus. Sending K.G. money to come back to Toronto is more consistent with the fact that K.G.’s earnings were all going to the accused.
[223] This brings me to the next factual point on this case. The accused says that, if K.G. was being exploited, then why would she come back to work for the accused in the spring of 2016. In my view, the explanation is simple. K.G. worked in the sex trade industry in Northern Ontario, and knew that she could earn more money in Toronto. As a result, she thought that she would try to earn that money and reached out to the accused for assistance. When she didn’t receive that money, she stopped and returned to Northern Ontario.
[224] It is important to then consider the factual issues that relate to exploitation. K.G. was a single mother whose child was being cared for by her own mother. She had a significant drug addiction, and I conclude that the accused was aware of it.
[225] I reach that conclusion for the following reasons:
a) The accused was aware of the fight between K.G. and K.C. over the drugs that K.C. had purchased.
b) The accused provided K.G. with drugs on a regular basis during her time in Toronto.
[226] Then, there are the legal issues. The legal analysis I have set out with respect to Count 1 applies equally to this count, although the facts are not being considered in my analysis. Specifically, it is clear that the accused was exercising influence over K.G. to have her work in the sex trade.
[227] Specifically, the accused used K.G.’s drug addiction, together with K.G.’s concern about her child, in order to exert influence over K.G. to have her continue to work in the sex trade.
[228] It is also clear that both routes by which the Crown could demonstrate exploitation beyond a reasonable doubt exist in this case in much the same way as they do for S.S.F.
[229] In addition, the use of K.G.’s concern about her child is, in my view, a clear use of psychological pressure in order to have K.G. continue to work in the sex trade. K.G. would have been concerned about the safety and well-being of her child, and would have been persuaded by the accused that the best way to ensure that well-being would be to continue to work in the sex trade.
[230] From this evidence, I conclude beyond a reasonable doubt that the accused was exercising influence over K.G. in order to have her
Count 7- Material Benefit
[231] On this count, the legal analysis is much the same as it is on Count #2. Given my findings on Count #6, it is clear that the prohibited conduct under section 279.01 occurred. It is also clear that, if the accused received a benefit from this conduct, then it was derived from the commission of a trafficking in persons offence.
[232] In terms of the knowledge requirement (as set out in paragraph 28 (b)), it is clear that the accused would have known that any income from K.G. came from her work as an escort. Given my finding that prohibited conduct occurred under section 279.01, it is also clear that the accused would have known that the money was earned from the commission of a trafficking in persons offence.
[233] The key issue on this offence is whether the accused received a material benefit. The accused testified that he only received reimbursement for expenses. In particular, he testified that the expenses that K.G. incurred were rent, a cell phone rental, and other costs associated with putting the advertisements up on Backpage.
[234] I reject that assertion for the following reasons:
a) If there was an agreement on how much rent was to be paid, then there would be no reason for the accused to obtain the money every morning. Collecting the money every morning is more consistent with the accused obtaining all of K.G.’s earnings from the previous day.
b) K.G.’s evidence that she was not actually given the money was clear and consistent. I have reviewed the issues with the accused’s evidence relating to K.G. at paragraph 222.
c) If this was purely a transaction over rents, then the accused would not have sent K.G. money to come back to Toronto. I find that the reason that the accused sent K.G. money to come back to Toronto was so that she could continue to work for him.
d) The provision of drugs to K.G. was, as I have discussed elsewhere, done so that K.G. would continue to work in the sex trade, and provide the income to the accused.
[235] For the foregoing reasons, I am persuaded beyond a reasonable doubt that the accused received a material benefit from K.G. for her work as a prostitute. A verdict of guilty will be registered on the seventh count of the indictment.
Count 8- Procuring
[236] Both the mens rea and the actus reus for this offence are similar to the offence under section 279.01. In this case, the factual findings I have made with respect to the other two offences relating to K.G. apply equally here.
[237] Given that finding, it is clear that the actus reus of this offence has been proven beyond a reasonable doubt. It is clear from the conclusions that I have set out above that the accused exercised at least influence over the movements and actions of K.G. in order to have her provide sexual services for consideration. As a result, the method of demonstrating that the accused committed the actus reus of this offence is the method outlined in paragraph 39 (c), namely exercising control, direction or influence over the movements of a person who offers or provides sexual services for consideration.
[238] This brings me to the mens rea for this offence. In considering the charges under 279.01, I already made findings on what the accused’s purpose and intent was in this case. The same findings apply here.
[239] For the foregoing reasons, I am persuaded beyond a reasonable doubt that the accused is guilty of this offence. As a result, a verdict of guilty will be recorded on the eighth count of the indictment.
Conclusion
[240] For the foregoing reasons, the following verdicts will be recorded with respect to each count on the indictment:
a) Count 1- guilty
b) Count 2- not guilty
c) Count 3- guilty
d) Count 4- not guilty
e) Count 5- not guilty
f) Count 6- guilty
g) Count 7- guilty
h) Count 8- guilty
[241] As part of the sentencing submissions, counsel are to advise as to which of these counts, if any, should be stayed pursuant to the principles in R. v Kienapple (1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729)
LEMAY J
Released: June 24, 2019
Appendix A
Identification:
It is agreed that the identity of Mr. Francis ANTOINE is not in issue.
It is agreed that Mr. Francis ANTOINE is known as;
a. “Blue”
b. “Andrew Macc”
c. “Macc”
It is agreed that Mr. Francis ANTOINE had a facebook account under the name of “Andrew Macc”.
It is agreed that Mr. Francis ANTOINE has a brother by the name of ANTOINE and is also known as “short”.
Hotel Registrations (Tab A):
- It is agreed that hotel rooms were rented in the name of K.G. on the following dates and at the following location:
a. The Super 8 Mississauga 6625 Kennedy Road, Mississauga Ontario
i. October 27, 2015 to October 29, 2015 (Room # 204)
ii. November 12, 2015 to November 15, 2015 (Room #211)
- It is agreed that hotel rooms were rented in the name of Francis ANTOINE on the following dates and at the following locations:
a. Stardust Motel 2965 Carling Avenue, Ottawa Ontario
i. February 2, 2017 (Room #21) * copy of passport of Francis ANTOINE used for identification at registration*
b. Quality Inn & Suites 5585 Ambler Drive, Mississauga Ontario
i. February 10, 2017 to February 14, 2017 (Room # 104)
c. Best Western 135 Carlingview Drive, Toronto Ontario
i. February 14, 2017 to February 16, 2017 (Room #216)
d. Toronto Airport West Hotel 5444 Dixie Road, Mississauga Ontario
i. February 16, 2017 to February 19, 2017 (Room #0637)
Advertisements- Backpage (Tab B):
- It is agreed that advertisements for sexual services of S.S.F. were posted on Backpage.com on the following dates and times:
a. Tuesday February 14, 2017 at 8:08 am (3 pages)
b. Tuesday February 14, 2017 at 8:03 pm (2 pages)
c. Wednesday February 15, 2017 at 10:04 am (2 pages)
d. Wednesday February 15, 2017 at 3:49 pm (2 pages)
e. Thursday February 16, 2017 at 8:38 am (1 page)
f. Thursday February 16, 2017 at 9:42 pm (2 pages)
g. Saturday February 18, 2017 at 1:49 am (2 pages)
h. Saturday February 18, 2017 at 4:32 am (1 page)
Facebook Messages (Tab C):
- It is agreed that Mr. Francis ANTOINE, “Andrew Macc” and Ms. S.S.F. had contact between approximately February 4, 2017 and February 11, 2017 over facebook messenger.
a. Messages between Mr. Francis ANTOINE, “Andrew Macc” and Ms. S.S.F (64 pages)
February 15, 2017:
- It is agreed that on February 15, 2017, Peel Regional Police officers attended at the Best Western Hotel at 135 Carlingview Drive, Toronto Ontario, Room #216 and spoke with S.S.F.
February 18, 2017:
It is agreed that on February 18, 2017 Peel Regional Police officers responded to a call and attended at the Toronto Airport West Hotel at 5444 Dixie Road, Mississauga Ontario, room #637.
It is agreed that the officers arrived at approximately 3:04 am, and spoke with S.S.F.
It is agreed that S.S.F. left the hotel with the officers at approximately 3:34 am and attended at a local division where she was interviewed and in the presences of police until after 5:00 am.
Banking Records (Tab D):
- It is agreed that in 2015 Mr. Francis ANTOINE held bank account ____ with the Bank of Montreal.
a. The bank account was registered in the name of Mr. Francis A ANTOINE, with an address of _______, Ontario;
b. The transit ____ represents the home branch at ___________.
- It is agreed that in 2015 K.G. held bank account __________ with the Bank of Montreal.
a. The bank account was registered in the name of ______with an address of ___________.
b. The transit _____ represents the home branch of the account at __________.
- It is agreed that on October 15, 2015 an e-transfer was sent from Mr. Francis ANTOINE’s BMO acct # _______ via email address _______ to Ms. K.G.’s account # _______ via email address _________.
a. E-transfer in the amount of $100 complete (1 page
Cellular Devices (Tab E- “Samsung Cellular phones associated to FA”.)
It is agreed that Francis ANTOINE was arrested on March 19, 2017 following a traffic stop in which he was driving a grey Lexus with license plate _______.
It is agreed that Francis ANTOINE identified himself with a valid Canadian Passport.
It is agreed that there was one other passenger in the motor vehicle. The female passenger had and retained possession of her personal cell phone- IPHONE.
It is agreed that five (5) Samsung Cellular phones and several SIM cards were found pursuant to a search incident to arrest of the motor vehicle.
It is agreed that the devices were analyzed pursuant to a warrant and the extracted data is found on the DVD entitled “Samsung Cellular phones associated to FA” (Tab E).
a. PY17045511 = Samsung Grand Prime- IMEI #359653066047914
b. PY17045512 = Samsung S7 Edge- IMEI # 302720606261161
c. PY17045513 = Samsung Prime IMEI # - 359653065885405
i. Three (3) separate SIM cards located on this device
d. PY17045514 = Samsung IMEI #- 89302720415964188489
e. PY17045515 = Samsung IMEI # -359653066229363
February 15, 2017:
It is agreed that on February 15, 2017, Peel Regional Police officers attended at the Best Western Hotel at 135 Carlingview Drive, Toronto Ontario, Room #216 #216 and spoke with S.S.F. at approximately 10:20 am.
It is agreed that video #155 titled ‘20170215_134018mp.4’ found on Samsung PY17045512. Extraction PDF lists only a modified time and not a credited time.