Court File and Parties

COURT FILE NO.: CR-17-08739 DATE: 20200707

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – A.M. and M.P. Defendants

Counsel: K. Hutchinson, for the Crown R. Lichtman, for the Defendant, A.M. A. Wine, for the Defendant, M.P.

HEARD: January 14-17, 21-24 and February 3-6, 19, 21, 2020

PUBLICATION BAN Pursuant to s. 486.4 of the Criminal Code, no information that could identify the complainant shall be published in any document or broadcast or transmitted in any way.

REASONS FOR JUDGMENT

MCKELVEY J.:

Introduction

[1] Mr. A.M. and Mr. M.P. are charged with ten offences arising out of their relationship with A.K. According to the indictment, these offences are alleged to have taken place between February 1, 2015 and October 25, 2017. The defendants are alleged to have acted as pimps for Ms. K. It is alleged that they used a number of techniques, including the provision of drugs, to control and influence Ms. K.’s involvement in the sex trade. The charges against the accused include: human trafficking, exercising control or influence over a person, drug trafficking, uttering threats and advertising sexual services.

Evidence at Trial

[2] The principal witness for the Crown was A.K. At the conclusion of her evidence in chief, the Crown brought an application under s. 9(2) of the Canada Evidence Act to cross-examine Ms. K. In addition, the Crown brought an application to admit her evidence from the preliminary inquiry. Both of these applications were granted.

[3] In addition to the evidence of Ms. K., the court heard evidence from Mr. Gabriel Chiu, who is a civilian employee of the York Regional Police. Mr. Chiu introduced evidence of what was contained on a cellphone owned by the defendant, A.M. York Regional Police Detectives Thomas Cober and Andrew Salmon were also called as witnesses at trial. Finally, the Crown introduced an Agreed Statement of Fact as evidence. The defence elected not to call any evidence at trial.

Evidence of A.K.

[4] Ms. K. testified that she lived with her parents in a town which is roughly a two and a half hours drive from Toronto. At the time of trial, she was in her early thirties. She stated that she was in her late twenties when she was originally introduced to Mr. A.M. at a bar in Toronto by another female. She originally met Mr. A.M. and another male who was identified as Mr. X. In their initial discussions at the bar, Ms. K. talked to both Mr. A.M. and Mr. X about going to work for Mr. X in the escorting business. The exact timing of this initial meeting was not identified and throughout her evidence, Ms. K. re-iterated that her recollection of dates and times when events occurred was very poor.

[5] Following this initial meeting, Ms. K. travelled to Edmonton to work for Mr. X. However, this only lasted about a week before Mr. X told her to leave. Ms. K. explained that she had a longstanding issue of substance abuse involving alcohol and drugs, both prescription and non-prescription. Mr. X had tried to get her sober in Edmonton and when he was unsuccessful, he sent her back to Ontario.

[6] About a month following her return to Toronto, Ms. K. spoke to Mr. X again seeking assistance on working in the escort industry. Mr. X referred her to Mr. A.M. Ms. K. then followed up and spoke to Mr. A.M. prior to New Year’s. She then met with him after New Year’s and asked him to get work for her in the escort business. Mr. A.M. agreed to do so.

[7] Ms. K. testified that she started to work with Mr. A.M.’s assistance as an escort. Initially she worked out of various hotels in the Toronto area. Ads were routinely placed for her services on an internet service called backpage.com.

[8] During the time she was working with Mr. A.M. she was consuming large amounts of alcohol. She estimated that she would drink a litre of wine per day. She was also consuming drugs which included cocaine and N-methyl-3,4-methylenedioxyamphetamine, otherwise known as ecstasy, and which Ms. K. referred to in her evidence as “Molly”.

[9] While working with Mr. A.M. in the hotels, Ms. K. was introduced to M.P. Mr. M.P. would on occasion drive her to hotels and to clients’ homes.

[10] While working at the hotels Ms. K. testified that she would work for a couple of days and then return to her parents’ home for a couple of weeks. She would then come back to work in the Toronto area with Mr. A.M.

[11] Several months before the arrest of the accused, Ms. K. started to work out of a home which was rented by the defendants. The home was located in Newmarket. Both Mr. A.M. and Mr. M.P. lived in the home as well as another individual who was not involved with the escort business.

[12] From that point on, Ms. K.’s escort business was operated out of the Newmarket house. However, on September 9, 2017, there was an incident between the parties. This was precipitated by some frustration on the part of Ms. K. On the night before, she described throwing a PlayStation device or “PS4”, off the balcony of the house which belonged to the defendants. On the following morning, the defendants accused her of being involved in the loss of the PS4. They demanded that Ms. K. pay for it and there was a scuffle between Ms. K. and Mr. A.M. where he is alleged to have grabbed her by the arm and they ended up on the floor. Subsequently, Ms. K. testified that the defendants agreed to take her to the bus station. However, en route to the bus station with the defendants, they stopped the car at a friend’s house and told her to remain in the backseat. Ms. K. stated that although the car doors were locked and she initially had some difficulty getting out of the car, she was able to leave the vehicle. She went to a neighbour’s house and asked to speak to the police. The police attended and she subsequently was taken to the police station where she gave a video statement. She later returned to her parents’ home.

[13] Although Ms. K. had no recollection of returning to the house in Newmarket, she acknowledged that in fact she must have done this. The police evidence confirmed that she was found at the home in Newmarket on October 25, 2017. Detective Cober and Detective Salmon attended at the home in Newmarket where they met and spoke with Ms. K. On this date as well, Mr. A.M. and Mr. M.P. were arrested by the police.

Ms. K.’s Credibility and Reliability

[14] The Crown’s case against the defendants depends in large part on the evidence of Ms. K. Both her credibility and the reliability of her evidence are in issue.

[15] There were serious discrepancies between her evidence at trial as compared to her evidence at the preliminary inquiry and the statement that she gave to police on September 9, 2017. In her evidence in chief at trial, Ms. K. in her evidence, tended to downplay the involvement of the accused in the escort business. For example, on the issue of who was supplying drugs to her while working out of hotels, Ms. K. gave the following evidence:

Question: You indicated that – oh, while you were working, were you doing any drugs? Answer: Yes. Probably. Question: What kind of drugs? Answer: MDMA. Cocaine sometimes. Question: MDMA. Does that have any other names? Answer: Molly. Question: While you were working in the hotels, how were you getting the Molly? Answer: I’m not sure, really. I – I think I knew a couple people. Question: So do you recall who was giving you the drugs while you were working? Answer: Giving them to me? Question: Yes. Answer: No, I don’t. Trying not to remember those things.

[16] Later on her s. 9(2) cross-examination, Ms. K. testified as follows:

Question: All right. So then, I’ll just clarify. When you were working in the hotels and you were taking drugs, how were you getting the drugs? Answer: Well, I guess he’d have to help me find them. Question: Who’s “he”? Answer: A.M. Question: All right. What does that mean? How would be help you? Answer: Well, to get them, I guess. Question: Would you get the hotels [ sic ] outside of the hotel room or would you receive them in the hotel room? Answer: Inside the hotel room. Question: And who would hand you the drugs? Answer: A.M. Question: And who did you give money to for the drugs? Answer: A.M.

[17] Another example of a significant discrepancy between Ms. K.’s evidence at the preliminary inquiry and her evidence in chief at trial was explored by the Crown on the s. 9(2) cross-examination on January 16, 2020, where she gave the following evidence:

Question: You had told us earlier that when you were working that you were doing with A.M. and at the times with A.M. and M.P. that you were doing the postings. Is that correct? Answer: Pardon? Question: You had - sorry. I’ll rephrase that. You denied. When you were working at the hotels, you had told us earlier that you were doing the posting for the hotels and not A.M. Is that correct? Answer: Yes. Question: Okay. So I’m going to ask you to go to the first of the volumes, so that’s the 30 th , please. And if you go to page 63, please. Answer: Okay. Question: And when you’re there, I’m going to start at line nine. Answer: Okay. Question: Question: And while you were working in the hotels, are you doing the ads the same way that you described earlier? Answer: Yes. Okay. So who’s posting the ads? Answer: He would be. Question: And where are you? Answer: Mostly. Question: Sorry? Answer: Sometimes I would try to but he usually helped me or do them for me. Question: He would usually help you? Answer: Or do them for me. Yes. Okay? Answer: Right. Question: And so, in that passage, you’ve indicated that A.M. was doing – mostly doing the postings and that there were times you were doing them and he would help you. Answer: Right Question: Is that a fair read of that? Answer: Yes. Question: All right. And I’m going to suggest to you you said that because that was true? Answer: Right. Question: And I’m going to suggest to you that when you were working in the hotels, when you’re working with A.M., that he was doing most of the postings. Answer: For the most part, yeah. Like I said, I’m not good with words. Its mostly why I needed help.

[18] Later in cross-examination by counsel for Mr. A.M., Ms. K. agreed with the suggestion that she adopted evidence from her preliminary hearing and the police statement as true because she didn’t want to be charged with any kind of offence herself.

[19] There were, therefore, a significant number of inconsistencies in Ms. K.’s evidence at trial on important points which raise serious questions about her credibility and the reliability of her evidence. It was apparent in her evidence at trial that most of the inconsistencies tended towards minimizing the involvement of the defendants in the escort business. This suggestion was put to Ms. K. in her s. 9(2) cross-examination by Crown counsel on January 17, 2020. The following is her evidence on this issue:

Question: Okay. I’m going to suggest to you that as we’ve gone through the transcripts, much like this passage, that today you’ve been trying to minimize anything that you think is – puts A.M. or M.P. in a negative light. Do you agree with that? Answer: No. I’m just trying to tell the truth. Question: And I’m going to suggest that as we had looked at this passage like others that you are doing your best to try and minimize things, because you don’t want to have to tell the whole truth today. Answer: No. That’s not true. Question: And I’m going to suggest to you that the reason today is very significant is because you know today’s an actual trial as opposed to the earlier matter. Do you agree with that? Answer: Sorry. What did you mean by that? Question: You know the proceeding we’re at now is a trial as opposed to a preliminary inquiry. Answer: Right. Question: Do you agree with that? Answer: Yeah. Question: And that you are trying not to get them in trouble so they won’t be mad at you. Answer: No, that’s not true. Question: And you’re trying not to get them in trouble because you’re scared they will get angry with you. Answer: No, that’s not true. Question: And on some level, you’re also trying not to get them into trouble because you still have feelings for A.M. Answer: That might be true. Question: And you’re trying not to get them in trouble because you have still feelings of friendship towards M.P. Answer: I guess so. Yes. Yeah. Question: And that if there’s a way you can help them, you’re going to do that. Answer: I guess. Yeah. Question: You guess, yeah? Answer: Yeah…. Question: Or it is true? Answer: Yes. That’s true.

[20] Another possibility I have considered to explain the discrepancy between the complainant’s evidence at the preliminary hearing and trial is that she was fearful of the defendants. There is some support for this explanation in the evidence of Ms. K. when she was questioned by Crown counsel during her s. 9(2) cross-examination. When it was suggested that she was scared that the defendants would be mad at her if she came to court, she responded, “I didn’t want them to be charged either”. Whatever the reason, what is apparent to me is that Ms. K. deliberately gave her evidence at trial in a way that minimized the involvement of the accused.

[21] My impression of Ms. K. is that she was generally an honest witness and that most of her evidence is in fact accurate. Some support for this conclusion is found in the fact that much of her evidence is supported by other evidence. For example, there can be no doubt that Ms. K. was heavily engaged in the escort business at the time she was with the defendants at the home in Newmarket. In the Agreed Statement of Fact is a summary of evidence from N.G., who gave a description of the persons she would routinely see next door. She gave evidence that there was a lot of car activity at the house where the defendants lived. Cars would pull up and the woman would bring the male drivers to the back of the house. She also described hearing yelling and swearing at the house, but noted that “the noise was not constant”. In the six weeks before she contacted the police, she stated that there were times where things were very loud next door, but there were also times when things were quiet. This is entirely consistent with Ms. K.’s evidence, including her evidence that she would visit the house for periods of time and then return to her parents’ home. There is also considerable evidence of the escort activity which is found in the text messages on Mr. A.M.’s phone which is again consistent with what Ms. K. told the court at trial.

[22] I was also impressed by the fact that Ms. K. did not hesitate to disclose evidence which might be embarrassing to her. For example, she testified candidly about her involvement in throwing the PS4 device over the balcony and also readily admitted slashing one of the tires of Mr. A.M.’s vehicle. She also admitted to stealing drugs from Mr. X. Nevertheless, there is a legitimate concern about the reliability for some of Ms. K.’s evidence. When questioned on cross-examination by defence counsel about the fact that her testimony had changed and gone through different phases, Ms. K., in trying to explain why that occurred responded, “just my brain was a lot more confused back then”. Indeed the consumption of drugs and alcohol which Ms. K. was consuming may have affected Ms. K.’s ability to recall specific details of the events which took place. This raises a genuine concern about the reliability of her evidence. I have concluded that another major factor which explains the discrepancies in her evidence is her admission during the trial that she was trying to protect the accused. This came through not only in her evidence at trial but in previous statements where she expressed concern about the possibility that the accused could be charged.

[23] The Crown suggests that where there are discrepancies I should rely on Ms. K.’s evidence at the preliminary hearing over her evidence at trial to support convictions on the charges faced by the accused. The Crown’s position is that her evidence at the preliminary hearing was both credible and reliable because she was not pre-occupied with trying to protect the accused and there is considerable corroborating evidence.

[24] There is merit in the Crown’s position. Ms. K.’s evidence at the preliminary hearing appears to be more straight forward without any attempt to down play the role of the defendants. In cross-examination at the preliminary hearing she generally rejected attempts to challenge her evidence. Her evidence was far more consistent. This was in stark contrast to her evidence at trial where she tended to move away from her evidence in chief on significant parts during the s. 9(2) cross-examination by the Crown and again in cross-examination by defence counsel. While I consider Ms. K.’s preliminary hearing evidence to be more credible and reliable where there are inconsistencies with her evidence at trial, there are still some inconsistencies in her evidence from the preliminary inquiry which cannot be explained by an attempt to protect the defendants. For example, at the preliminary hearing she denied any significant alcohol consumption while giving her evidence. At trial she gave evidence that she consumed a substantial amount of alcohol while giving her evidence at the preliminary hearing. Her evidence on this point was supported by the evidence of Detective Salmon who stated that he could smell alcohol on Ms. K.’s breath during the time she gave evidence at the preliminary hearing.

[25] Overall, I have concluded that Ms. K. was basically an honest witness and I am inclined to place more reliance on her preliminary hearing evidence where it diverges in a significant way from her evidence at trial. Having said that, it must be recognized that there are legitimate concerns about the credibility and reliability of her evidence. In light of these concerns, caution must be exercised in relation to her evidence. I have concluded that in light of these concerns, it would be dangerous to convict the accused of any offence based on her testimony alone. It must also be clearly understood that the defendants are presumed to be innocent and this presumption stays with the defendants until the Crown has proved the charges beyond a reasonable doubt.

Count One

[26] Count One alleges that M.P. and A.M.,

Between the 1 st day of February in the year 2015 and the 25 th day of October in the year 2017 at the Town of Newmarket in the Regional Municipality of York and elsewhere in the Province of Ontario did exercise control over the movements of a person, namely A.K., for the purpose of exploiting or facilitating the exploitation of that person, contrary to Section 279.01, subsection (1) of the Criminal Code of Canada.

[27] This is the allegation relating to the charge of human trafficking.

[28] Given the position of the Crown on this charge, there are two essential elements which must be proved beyond a reasonable doubt in order to establish guilt on the part of the accused: (1) that the accused exercised control, direction or influence over the movements of Ms. K.; and (2) that the purpose for which they exercised control, direction or influence, was the exploitation of Ms. K. I will deal first with the second essential element as noted above. Section 279.04 of the Code provides a definition of the term exploitation and as referenced in s. 279.01. This section provides 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) Factors - 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.

[29] In the present case, there is no evidence that either of the accused used or threatened to use force against Ms. K. prior to September 9, 2017. There is an allegation that a threat was uttered by Mr. A.M. against the complainant on September 9 th , which will be dealt with later in these Reasons. At this point, it is sufficient to note that the Crown is not relying on this as a basis to prove exploitation. Nor is there any evidence that the defendants used deception as a means of causing Ms. K. to provide sexual services. The position of the Crown is that the accused abused a position of trust as drug suppliers to Ms. K. for the purpose of exploiting her.

[30] The Ontario Court of Appeal has recently commented on the human trafficking provisions and the interpretation of exploitation in their decision in R. v. Gallone, 2019 ONCA 663, [2019] O.J. No. 4247. In that decision the court noted that actual exploitation is not an essential element of the offence. The Crown need only prove that the accused “intentionally engaged in any of the conduct described in s. 279.01(1) with the purpose of exploiting the complainant or facilitating her or his exploitation”. Thus, the court must look at all of the circumstances to determine whether the conduct of the defendants was intended to reasonably cause Ms. K. to believe that her safety would be threatened if she failed to provide escorting services. It is also clear that the term “safety” as used in s. 279.04(1) is not restricted to physical safety, but also to psychological harm as well. See R. v. A.A., 2015 ONCA 558, [2015] O.J. No. 4016, at para. 71.

[31] There is authority to suggest that in certain circumstances a drug dealer/drug user issue could constitute a relation of trust, power or authority. In R. v. Antoine, 2019 ONSC 3843, [2019] O.J. No. 3325, Justice LeMay refers to the Ontario Court of Appeal decision in R. v. A.H., [2000] O.J. No. 3258, where the Ontario Court of Appeal stated,

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 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.

[32] In a Certiorari Application brought by the defendants in this action (R. v. A.M., 2019 ONSC 1269, [2019] O.J. No. 1677), Justice Di Luca, at para. 39 states that in terms of abusing a relationship of trust or power, there must be evidence 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 designed end is getting the sex worker to perform sexual acts.

[33] The Crown relies on the Antoine decision as a case similar to this one where the complainant’s addiction was used to force her to work in the sex trade. In that case, however, the trial judge stated, “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”.

[34] The evidence of the complainant in this case, however, does not assist the Crown in establishing that the defendants took advantage of Ms. K.’s drug dependency to achieve a desired end. In her s. 9(2) cross-examination by the Crown, Ms. K. agreed that she didn’t really want to go back to work with the defendants because she wasn’t making any money and that she went back because Mr. A.M. told her he loved her and he also told her that he had Molly. In cross-examination by the defence, however, Ms. K. testified that she had access to Molly in Toronto before she met the defendants. She also agreed that if she was not able to get Molly from the defendants, she could find someone else to get it from. Given her prior use of Molly I accept this evidence. She also agreed that she worked with Mr. A.M. because she wanted to make money and that her romantic relationship with him was separate from her work.

[35] Ms. K.’s evidence both at trial and at the preliminary inquiry also made it clear that she was the one who initiated contact with Mr. A.M. because she felt she needed help in attracting clients for her escort work. Further, she testified that she would return home at regular intervals. In cross-examination at trial she agreed that the accused never did anything (including the offer of drugs) to prevent her from leaving and she left to go back home when she wanted to. She denied seeing clients so that she could be rewarded with Molly and stated that she was never told that to get Molly she would have to work. In her evidence at the preliminary inquiry, Ms. K. testified that while the accused did not want her to leave, there were “not really” any issues when she left to go back to her parents’ home, which she did from time to time. She did testify at the preliminary inquiry that the accused would follow up with her at her parents’ house begging her to come back and would tell her they had Molly. She agreed on cross-examination, however, that she was free to go home to her parents and would decide when to return to Toronto to go back to work. She reported that the accused would be in touch with her encouraging her to return.

[36] The conclusion I took from Ms. K.’s evidence is that Molly made it a lot easier to engage in her escort work, but it was not used as a means of keeping her working in a business she was opposed to engaging in. Overall the main motivation for Ms. K. to engage in the escort business was the pursuit of financial compensation. This is reflected in her evidence at the preliminary inquiry when she was asked whether she was expected to earn a certain number of dollars per day. She responded, “well, we would want to see as many as possible, but the cards did not always play out like that”.

[37] It is also significant in my view that Ms. K.’s use of Molly started well prior to her introduction to the two accused which lessens significantly the potential that the accused could use the supply of Molly to control Ms. K. She would be well aware of other sources of supply from her prior use of the drug. Molly was also only one substance she abused. The other main substance she abused was alcohol and she confirmed that she generally accessed alcohol on her own on a regular basis.

[38] Apart from the evidence of Ms. K., there was no other evidence adduced at trial which would go to the issue of whether the accused engaged in conduct that could reasonably be expected to cause Ms. K. to fear for her safety. Her evidence, on balance, would not support such a conclusion. In any event, as I have indicated previously, I have concluded that relying only on the evidence of Ms. K. to support a conviction would be dangerous in light of the credibility and reliability issues associated with her evidence. I am therefore not satisfied beyond a reasonable doubt that the second essential element of the offence has been proved beyond a reasonable doubt by the Crown on Count One. For that reason, an acquittal will be registered for Count One against both defendants.

Count Two

[39] Count Two relates to a charge that the accused received a financial or other material benefit knowing that it was obtained by the commission of an offence under s. 279.01(1) of the Criminal Code. As the underlying offence has not been proved, an acquittal will be registered for Count Two as well against both defendants.

Count Five

[40] Under Count Five, the accused are charged as follows:

THAT between the 1 st day of July in the year 2017 and the 25 th day of October in the year 2017 at the Town of Newmarket in the Regional Municipality of York and elsewhere in the Province of Ontario did knowingly advertise an offer to provide sexual services for consideration by posting an advertisement on Backpage.com, contrary to Section 286.4 of the Criminal Code of Canada.

[41] During her evidence, Ms. K. testified that in order to generate business, ads about her services were posted on backpage.com. During her evidence, a series of ads from backpage.com were entered as Exhibit 2. The ads are dated between September 1 and October 25, 2017.

[42] In order to obtain a conviction, the Crown must establish that the defendants intentionally posted the ads on backpage.com and also that the ads related to sexual services being offered by Ms. K. The defence argues that neither of these essential elements of the offence have been proved by the Crown.

[43] With respect to the content of the ads, the defence argues that there is nothing in the ads which specifically advertises the sale of sexual services. They rely on the evidence of Ms. K. that escorting can involve non-sexual services, such as accompanying a person on a date. She also agreed that in none of the ads is there any reference to intercourse or other sexual activities. Ms. K. explained in her evidence that explicit references to sexual activities were not allowed by backpage.com.

[44] The defence argues, in these circumstances, that the ads which were placed do not establish beyond a reasonable doubt that they were offering sexual services. I disagree.

[45] While there is no specific reference to sexual services being offered in the ad, they were placed on the backpage site under the heading “female escorts” and the narrative includes the following: “Hi my name is Phoenix Foxxx. I am unforgettable and I will make all your dreams come true!!!”.

[46] The photos which accompany the ads are very provocative and show Ms. K. in various states of undress. In one photo she is seen placing her hand underneath a bikini bottom in her genital area. All of this leaves very little to the imagination as to the services being offered by Ms. K.

[47] It is also apparent that those individuals reading the ads had no difficulty knowing what was being offered. The text messages which were found on Mr. A.M.’s phone clearly demonstrate that readers of the ads clearly understood what services were being offered. I conclude that the Crown has proved beyond a reasonable doubt that the ads in question do constitute an offer to provide sexual services.

[48] The next issue is whether the Crown has proved beyond a reasonable doubt that either or both of the accused posted ads on backpage.com.

[49] The evidence of Ms. K. at trial varied as to who was responsible for posting the ads. Initially she testified that while working at different hotels, Mr. A.M. would assist her with the ads, but she was the one posting them.

[50] Later in her evidence when talking about the Newmarket home phase of her escort business, she testified that Mr. A.M., Mr. M.P. and her were all involved in putting the postings on backpage.com. In her s. 9(2) cross-examination by the Crown, which was based on her evidence from the preliminary inquiry, Ms. K. agreed with the Crown that when she was working in the hotels, Mr. A.M. was doing most of the postings. She also agreed that when she was working out of the house in Newmarket, both accused were doing postings. In her preliminary inquiry evidence, Ms. K. was quite firm in stating that both accused placed ads on backpage.com.

[51] In addition to the evidence of Ms. K., however, there is additional confirming evidence found in the messages which were identified in Mr. A.M.’s phone. It must be noted at the outset, however, that only the data from Mr. A.M.’s phone was obtained. Some of the relevant messaging comes from another phone. The phone number of Mr. A.M.’s phone ends in 6426. The phone number alleged to be Mr. M.P.’s phone ends in 7813. In her evidence, Ms. K. testified that she believed the 7813 telephone number was Mr. M.P.’s number. In addition, the evidence of Officer Doug James, whose evidence was included in the Agreed Statement of Fact stated that shortly after Mr. A.M.’s arrest, he called the telephone number 7813 and spoke with a male voice who identified himself as “M.P.”. Arrangements were made for “M.P.” to attend the scene to deal with Mr. A.M.’s car. A male attended at the scene who was identified as the defendant M.P. Mr. M.P. was then arrested. There is also a message from Mr. A.M.’s phone to the 7813 number asking for his email address. The 7813 number responds with Mr. M.P.’s email address. The inference which I draw from this evidence is that the person the officer spoke to at phone number 7813 was Mr. M.P. and that this was Mr. M.P.’s phone number.

[52] In the data retrieved from Mr. A.M.’s phone, there is a message sent at 9:02:42 a.m. on September 25, 2017, which is addressed to Mr. M.P. stating, “Repost”. I infer that Mr. A.M. is asking Mr. M.P. to re-post the ad. Within two minutes of that message at 9:19:58 a.m., there is a response from a client who states, “Hi Foxx”, which suggests the ad has been re-posted.

[53] On September 26, 2017, there are a series of messages which starts with an inquiry from Mr. M.P.’s phone to Mr. A.M.’s phone stating, “Did she sleep?”. This would appear to be a clear reference to Ms. K. as she was the only known female staying at the Newmarket house. There is then a response from Mr. A.M.’s phone stating, “Yeee”. And then, “Woke up like a soldier”. The response from Mr. M.P.’s phone at 9:04:48 a.m. is, “Repost?”, and the response at 9:05:02 a.m. from Mr. A.M.’s phone is, “I will as soon as I get out of this apt”.

[54] These messages clearly support the evidence of Ms. K. that both Mr. A.M. and Mr. M.P. were posting at least some of the ads on backpage.com.

[55] The accused suggest some messages on the phones may have come from Ms. K. However, for reasons which are outlined later in these Reasons, I have concluded that Ms. K.’s access to the defendants’ phones was quite limited. The message exchange on September 26 clearly does not involve Ms. K. I therefore accept the evidence of Ms. K. at her preliminary inquiry that both accused were involved in posting ads for her services.

[56] There is further support for this conclusion from the ads themselves. The ads all reference either the 7813 or 6426 telephone numbers for purposes of responding to the ads.

[57] I conclude based on all of the above-noted evidence that the Crown has proved beyond a reasonable doubt that both defendants intended and did post advertisements on backpage.com offering the sexual services of Ms. K. There will, therefore, be a finding of guilt against both accused on Count Five.

Count Six

[58] Count Six states that the accused A.M. stands charged,

THAT on or about the 9 th day of September in the year 2017 at the Town of Newmarket in the Regional Municipality of York and elsewhere in the Province of Ontario did, by word of mouth, knowingly utter a threat to burn the real or personal property of A.K., contrary to Section 264.1, subsection (3) of the Criminal Code.

[59] This charge flows from a report to police by A.K. that Mr. A.M. on September 9, 2017, threatened her. In her evidence at the preliminary inquiry she testified,

They said that they would come to my house and burn the house down, or kill my cat, or – yeah, like, that was a threat to my family and my cat.

[60] In her evidence at trial, however, Ms. K. changed her evidence in a significant way. When she was referred to her evidence at the preliminary inquiry on the issue of the threat, she gave the following evidence,

Question: And the reason you said that to the court that day was because that was true? Answer: I – No, I think I was mistaken for who said that. It wasn’t them that said that. Question: How were you mistaken? Answer: It was other people I was thinking of. Question: Who were the other people? Answer: Well, I don’t want to really get into specifics of names. I don’t…. Question: Well, I’m afraid I have to ask you, if it’s not them as you had said on the 31 st of July, 2018 at court, who was it that said that? Answer: It would have been Dave or some…. Oshawa. Question: Dave was at the house? Answer: No. Question: All right. So can you explain to me how it is that you mixed up the speaker being M.P. or A.M.? I think in this context, you end up telling us it’s A.M., but M.P. or A.M. at the house. You were working on the day you called the police to somebody who was in Oshawa. Answer: I just – it was just like – I don’t really know how to explain it. It’s just kind of like a similar situation and I just got them confused. Question: Did you see Dave that day? Answer: No. Question: Pardon? Answer: That – the same day? Question: Yes. Answer: No. It was around the same time, though.

[61] Despite extensive s. 9(2) cross-examination by the Crown, Ms. K. remained firm in her evidence that it was someone named Dave who made the threat and not the accused.

[62] There is no other evidence before me other than the evidence of Ms. K. that would identify who made the alleged threat. As I have concluded it would be dangerous to rely on her evidence alone, I find that the Crown has failed to prove beyond a reasonable doubt the charge against Mr. A.M. He is acquitted on this count.

Count Seven

[63] Under Count Seven, Mr. A.M. is charged as follows,

THAT on or about the 9 th day of September in the year 2017 at the Town of Newmarket in the Regional Municipality of York and elsewhere in the Province of Ontario did commit an assault on A.K., contrary to Section 266 of the Criminal Code.

[64] This charge arises out of an alleged assault by Mr. A.M. on Ms. K. on the morning of September 9, 2017. In her evidence, Ms. K. describes an altercation which she says occurred after the PS4 was discovered to be missing. She testified that Mr. A.M. grabbed her arm. They wrestled for a moment and both ended up on the floor.

[65] In the Agreed Statement of Fact, there is information from Officer Joshua Shymko and Officer Christopher Kowaluk, that when they spoke to Ms. K. they noticed she had bruising on both her arms. The evidence of Ms. K., however, is that she had assorted bruising all over her body because she had a tendency to run into things. She denied any injury as a result of the alleged assault.

[66] The circumstances of the alleged assault rely solely on the evidence of Ms. K., which as previously noted, is not sufficient to support a conviction. For this reason, the defendant A.M. will be acquitted on this count.

Count Eight

[67] On Count Eight, M.P. and A.M. are charged,

THAT between the 1 st day of January in the year 2015 and the 25 th day of October in the year 2017 at the Town of Newmarket in the Regional Municipality of York and elsewhere in the Province of Ontario did traffic in a substance, namely N-methyl-3,4-ethylenedioxyamphetamine (ecstacy), contrary to Section 5, subsection (1) of the Controlled Drugs and Substances Act.

[68] As part of the Agreed Statement of Fact it was conceded that the drug N-methyl-3,4-ethylenedioxyamphetamine (ecstasy) is also commonly known as “Molly”.

[69] As noted earlier, Ms. K. was initially reluctant to identify the defendant, A.M., as the supplier of Molly. Later in her evidence in chief she identified the defendant, M.P., as someone who gave her Molly at the house in Newmarket. In her s. 9(2) cross-examination by the Crown, Ms. K. testified that the defendant, A.M., supplied her with drugs during the hotel phase of her business and that the defendant, M.P., supplied her with drugs at the house in Newmarket most of the time. At the preliminary inquiry Ms. K. testified that both accused supplied her with Molly.

[70] Messages 12626 to 12628 on Mr. A.M.’s phone on October 18, 2017 are messages to clients suggesting that Ms. K. was returning on the following night. Message 12712 from Mr. A.M.’s phone to an unknown person states, “I need Molly”. I conclude that Mr. A.M. was ordering Molly for the purpose of giving it to Ms. K. upon her expected return.

[71] The issue as against Mr. M.P. is less clear. In a message from Mr. M.P.’s phone on September 16, 2017, he states, “is she done her M”, which appears to be a reference to Molly. The response sent by A.M.’s phone within a minute states, “yeah I think so”. The message from Mr. M.P. would suggest that he was aware that Ms. K. was using Molly, but stops short of supporting a finding that he was supplying this drug to her.

[72] I have concluded that while there is clear supporting evidence that Mr. A.M. was supplying Ms. K. with Molly, the required supporting evidence for the charges against Mr. M.P. that he was supplying her with the drug is inadequate and the charge against him will therefore be dismissed.

[73] The defence also argues that there can be no finding that any drugs supplied by the accused was in fact Molly because there were no drugs seized or analyzed as part of the police investigation. The evidence of Ms. K. on this issue is that she has been taking Molly since grade 10 in high school. She described the effect Molly has which is different than alcohol. In cross-examination by defence counsel, she described the appearance of Molly and how it is ingested. Based on her evidence as well as the corroborating evidence contained in the data retrieved from Mr. A.M.’s phone, I am satisfied beyond a reasonable doubt that the drug supplied was in fact Molly and was intentionally given to Ms. K. by Mr. A.M. There will therefore be a finding of guilt against Mr. A.M. on Count Eight.

Counts Nine and Ten

[74] Under Counts Nine and Ten, M.P. and A.M. are charged with trafficking in cocaine and cannabis. In her submissions, Crown counsel acknowledged that there was insufficient evidence to support a conviction on these counts. I agree with the Crown on this issue. There will be an acquittal against both accused on Counts Nine and Ten.

Count Four

[75] On Count Four the accused M.P. and A.M. are charged:

THAT between the 1 st day of February in the year 2015 and the 25 th day of October in the year 2017 at the Town of Newmarket in the Regional Municipality of York and elsewhere in the Province of Ontario did, for the purpose of facilitating an offence under subsection 286.1(1), exercise control, direction or influence over the movements of A.K., contrary to Section 286.3, subsection (1) of the Criminal Code of Canada.

[76] The essential element of this offence is that an accused must intentionally exercise control, direction or influence over the movements of a person in relation to the provision of sexual services for consideration.

[77] The defence argues that to the extent that the accused gave any information to clients with respect to the services available from Ms. K. or the rates to be charged, that this would not fall within the prohibition under s. 286.3. They based this submission on the argument that to the extent the accused were simply following directions given by Ms. K. and implementing those directions, they would not be exercising control, direction or influence over her movements.

[78] The evidence of Ms. K. suggests that Mr. M.P. did not have any direct involvement other than occasionally driving her to appointments during the hotel phase of her business. However, her evidence suggested that the defendant, A.M., was involved in her business during the hotel phase and that both the accused were involved in her business during the house phase in Newmarket.

[79] I have previously found that both of the accused were involved at some point in posting ads for Ms. K.’s services.

[80] In her evidence from the preliminary inquiry, Ms. K. testified that both accused were involved in arranging meetings with clients and dealing with clients in scheduling appointments.

[81] Ms. K.’s evidence also suggested that she relied on the accused to screen out undesirable clients.

[82] The data extracted from Mr. A.M.’s phone strongly supports the evidence of Ms. K. with respect to the activities of the accused.

[83] The defence points to evidence from Ms. K. that sometimes she would use the phones of either of the accused to respond to inquiries from her clients. Nevertheless, the data extracted from the phone strongly suggests that most of the inquiries from clients were responded to by either Mr. A.M. or Mr. M.P. For example, message 8372 on October 4, 2017 is a message from Mr. A.M.’s phone to a client at 3:09:30. Less than 30 seconds later is a message (8373) at 3:09:38. Mr. A.M. is sending a personal message to a friend named Stephanie. Messages 8379, 8380, and 8381 are messages to clients at 3:20 on October 4, 2017. Less than a minute later at message 8382 there is a personal message to Stephanie. The close timing for many of the messages on Mr. A.M.’s phone convinces me that the vast majority of messages on the phone are those of Mr. A.M. In these messages, he is negotiating rates with clients, rejecting some clients and making appointments for others.

[84] I also note there is a message (6639) where Mr. M.P. asks, “Does she have a phone”, to which Mr. A.M. responds, “No”. This suggests that Ms. K.’s access to a phone was very limited.

[85] There are also messages from Mr. M.P.’s phone suggesting that he is involved in the same activities as Mr. A.M. For example, there is a message from Mr. M.P.’s phone at 8731 on October 6, 2017 which states, “Yo should I send this guy here”. In message 13464 from Mr. M.P.’s phone he appears to be soliciting advice from Mr. A.M. as to how to respond to a client message.

[86] At message 13789 on October 21, 2017, Mr. M.P. sends a message to Mr. A.M. stating, “She gave him an extra 1.5hrs for free”.

[87] There are also a series of messages from Mr. M.P. to Mr. A.M. on October 21, 2017 from 13983 to 13988 where Mr. M.P. is giving directions to Mr. A.M. asking Mr. A.M. to pass instructions to “her” (which I take to be a reference to Ms. K.) to pick up a client from a vehicle he was in. Following a report that this client had left there were a further series of messages from 13990 to 13994 asking Mr. A.M. to tell Ms. K. to get another client who was waiting outside.

[88] On October 10, 2017, there are messages 12600 to 12603. In the initial messages from Mr. A.M. to Mr. M.P., he writes, “Getting mad hits for that ho”. And “We gotta scoop her tonight”. Mr. M.P. then responds, “Is she ready”.

[89] In addition there is the evidence of the ads themselves which have either Mr. A.M.’s or Mr. M.P.’s phone numbers to respond to.

[90] Based on all of this evidence, I accept Ms. K.’s evidence from the preliminary inquiry and have concluded that both of the accused intentionally responded to clients’ inquiries, made appointments for Ms. K., negotiated the prices for the services to be rendered by her, and screened out clients who were felt to be undesirable.

[91] The question which remains is whether these activities constitute control, direction or influence over the movements of Ms. K. with respect to her provision of sexual services. In my opinion, these activities do fit within that prohibition.

[92] In the Gallone decision, the Ontario Court of Appeal considered what is encompassed by the term “influence”. At para. 47 of the decision the court states that, “exercises influence” over the movements of a person is something less coercive than “exercises direction”. Exercising influence over a person’s movements means doing anything to affect the person’s movements. Influence can be exerted while still allowing scope for the person’s free-will to operate. This would include anything done to induce, alter, sway or affect the will of the complainant.

[93] In my view, the activities engaged in by the accused at a minimum constitute exercising influence over Ms. K.’s activities. While Ms. K. was always at liberty to over-rule decisions made by the accused she generally followed through with these arrangements. This constitutes at a minimum the exercise of influence by the defendants, which was done intentionally by them.

[94] This conclusion is supported by the decision of this court in R. v. Tekin, 2019 ONSC 5093. In that case, the court held that the defendant was actively involved in the complainant’s escort activities. The court found that the defendant made arrangements with clients without first speaking with the complainant to perform sexual services. He agreed to times, locations and prices. He also drove her to most of the client meetings. Justice Bird found that at the very least, the defendant’s conduct amounted to influence and more often constituted direction. At para. 26 of her decision she states,

Mr. Tekin routinely communicated with clients and set up appointments on Ms. Kirschner’s behalf without consulting her in advance. Once the arrangements were made, he advised her. While it was his position that Ms. Kirschner was always free to decline, at the very least this behaviour amounted to influence. Influence does not require that Ms. Kirschner did not exercise her free will. As defined in Gallone, it is akin to proposing an idea and persuading the person to adopt it. Mr. Tekin did exactly that when he made agreements on Ms. Kirschner’s behalf for her to provide specific sexual service, at a specific time and place for an agreed upon price. Mr. Tekin was clearly confident in his ability to make commitments on behalf of Ms. Kirschner which supports a finding that he knew he was in a position to exercise control, direction or influence over her. For example, on July 28, 2016 after having a detailed text conversation with a client, Mr. Tekin said “ok, we have a deal for $600 then”.

[95] The same reasoning would apply in the present case.

[96] I therefore find that the Crown has proved beyond a reasonable doubt that both Mr. A.M. and Mr. M.P. are guilty on Count Four of the indictment.

Count Three

[97] In Count Three, both Mr. M.P. and Mr. A.M. are charged,

THAT between the 1 st day of February in the year 2015 and the 25 th day of October in the year 2017 at the Town of Newmarket in the Regional Municipality of York and elsewhere in the Province of Ontario did receive a financial or other material benefit, namely money, knowing that it was obtained by the commission of an offence under subsection 286.1(1) of the Criminal Code, contrary to Section 286.2, subsection (1) of the Criminal Code of Canada.

[98] In her evidence in chief at trial, Ms. K. stated that if Mr. M.P. received the inquiry from a client, she would pay him 40%. Later in her evidence on the s. 9(2) cross-examination, she disagreed with the Crown that the defendants took 50%. Similarly, if Mr. A.M. received the call from the client, he would get 40%. In addition, she contributed to the rent on the house in Newmarket by paying money to Mr. A.M. In addition to that, she would have to pay either Mr. A.M. or Mr. M.P. money for the drugs she received. During the hotel phase, she would also be required to pay the cost of the hotel. At the preliminary inquiry, Ms. K. testified that the split with the accused was on a 50/50 basis.

[99] The evidence of Ms. K. that she split the proceeds from her escort activities was supported by the data contained in Mr. A.M.’s phone. For example, message 7717 is a message from Mr. M.P. to Mr. A.M. on September 30, 2017, which states, “I need ur rent b4 the first”. In response at messages 7719 and 7720, Mr. A.M. responds “she’s gonna go by bank tomorrow after work”. This was followed by a message which states, “I’m talking about A.K.”. This message is followed by a further message at 7728 from Mr. M.P.’s phone which states, “just tell her to e-transfer it to me”. Mr. A.M.’s phone then responds, “She can’t tonight she said. She has to go to bank”. At message 4726, there is a message from Mr. M.P.’s phone to Mr. A.M. which states, “get the loot?”.

[100] Message 4492 is a message dated September 1, 2017, from Mr. A.M.’s phone to Mr. M.P.’s phone. It states, “U always gotta make sure she’s on a 0”. The inference I draw from this message is that the accused felt it was important to keep Ms. K. so that she had no funds available. This is consistent with Ms. K.’s evidence in chief when she testified that during the hotel phase, after a session had been completed she was not left with much money; she suggested she was left with something like $100.

[101] Taking all of the evidence into account, I have concluded that the Crown has proved beyond a reasonable doubt that both accused did intentionally take a financial benefit from the respondent’s activities described under Count Four which constitutes an offence under s. 286.2(1) of the Criminal Code. There will be a finding of guilt therefore on Count Three.

Summary

[102] For the above reasons, I find the defendant Mr. A.M. guilty on counts 3, 4, 5, and 8.

[103] For the above reasons, I find Mr. M.P. guilty on counts 3, 4 and 5.

[104] The balance of the charges against both accused are dismissed.

Justice M. McKelvey

Released: July 7, 2020

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – A.M. and M.P. Defendants REASONS FOR JUDGMENT Justice M. McKelvey

Released: July 7, 2020