ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-19-1409

DATE: 2021 06 21

BETWEEN:

Her Majesty the Queen

G. Hendry counsel for the Crown

• and -

Y.S.

E. Mehrabi and A. Thomas, counsel for the Accused

Accused

HEARD: April 12-16, 19, 20 and 22, 2021

REASONS FOR DECISION

LEMAY J

[1] The accused, Y.S. and the complainant, D.H.P. were in a relationship for significant periods between November 2015 and February 2018. During this relationship, both the accused and the complainant were addicted to cocaine and regularly used it. The accused was in jail for several periods during his relationship with the complainant. The complainant worked in the sex trade during much of her relationship with the accused.

[2] The relationship ended on February 4^th, 2018 after an altercation at a hotel in Mississauga. The complainant called the police and made a complaint to them. The accused was arrested on February 8^th, 2018 and charged with several human trafficking related offences as well as with two separate counts of assault, and three counts of breach of probation. A further count of sexual assault was added to the indictment after the preliminary hearing. All the charges that the accused faces on the current indictment stem from the accused’s relationship with the complainant.

[3] At the outset of the trial, the Crown withdrew one of the assault charges. At the close of its case, the Crown withdrew the charge of withholding the complainant’s documents for the purposes of facilitating her exploitation under section 279.03(1) of the Criminal Code.

[4] At the conclusion of the evidence, the accused pled guilty to the breach of probation charges as well as to an assault on February 4^th, 2018. The accused’s guilty plea on the assault was limited to certain facts which I will come to, and the Crown is seeking a broader finding of guilt as a result of the events that took place that day. In essence, I conducted a Gardiner hearing under section 724 of the Criminal Code. Both counsel advised that this was what I was expected to do.

[5] I heard testimony from the complainant and the accused. The cross-examination of the complainant was limited as a result of a section 276 application (see R. v. Y.S. 2021 ONSC 2836). In addition, the parties reached an Agreed Statement of Facts. This Agreed Statement of Facts is reproduced (on an anonymized basis) in Appendix “A”. I have considered it in coming to my conclusions.

[6] I have divided my reasons into the following sections:

a) A background narrative on the relationship between the parties.

b) An outline of the charges on the indictment.

c) A general discussion of credibility as well as a discussion of some evidentiary issues that arise in this case.

d) A review of the assault-related charges and my conclusions on the law and the facts relating to each of the assault charges.

e) A review of the sex trade-related counts of the indictment, a discussion and my conclusions on the law and the facts relating to each of the sex-trade related charges.

Background

[7] The purpose of this background is to outline the general narrative of the accused’s relationship with the complainant as well as providing a framework for analyzing the specific counts on the indictment.

a) The Accused

[8] The accused is currently 37 years old. He is currently a member of the Labourers International Union of North America and is employed as a skilled labourer. He has one daughter from a previous marriage.

[9] In the fall of 2015, the accused testified that he was between jobs and had started selling cocaine. At the time, he had recently separated from his now ex-wife and was going through a divorce proceeding with her. The accused had also lost his job shortly before he met the complainant. In the time period between 2015 and 2018, most of the limited income that the accused made came from the sale of cocaine. The accused was selling cocaine when he met the complainant.

[10] Prior to meeting the complainant, the accused did not have a criminal record. He has accumulated some criminal convictions in the time he was in a relationship with the complainant. I will outline these convictions below, as they relate to the facts of this case.

b) The Complainant

[11] The complainant was born and raised in a small town in Northern Ontario. She is currently 31 years old. In 2014, she moved from Northern Ontario to Ottawa because there were few opportunities in Northern Ontario and she wanted to figure out what she was doing with her life.

[12] When the complainant was in Ottawa, she began working with a pimp that the parties variously referred to as Nathan or Montana. I will refer to him as Nathan as that is the name that the complainant used in her evidence before me.

[13] At some point in the fall of 2015, the complainant came to Toronto where she continued to work for Nathan. Her arrangement with Nathan was that he would do the postings and advertising on BackPage and obtain the clients for her while she provided the services. The money that was made was split 50/50, and the complainant generally did not see Nathan except when he came to collect his share of the money from her at the end of the night.

[14] One evening in late October or early November of 2015, the complainant was asked to do an “out call”, which is a visit with a client that takes place at the client’s house. This out call was arranged by a couple who had a friend visiting them. The couple had asked the complainant to come and provide services for their friend.

[15] When the complainant arrived, the friend of the couple who had asked her to come was asleep. The complainant ended up talking with the couple who had invited the accused over. The accused came to sell cocaine to the couple. He and the complainant ended up spending some time together that evening. The complainant and the accused both acknowledged that, on first meeting, they found the other person attractive.

[16] Over the next couple of weeks, the complainant continued to work for Nathan. During this time, the accused was hanging out with the complainant in her hotel room and they were drinking and using cocaine before she started to work for the day.

[17] However, at one point in that time period, Nathan suggested to the complainant that she should use a sponge in her vagina so that she could continue to work while she was having her period. The complainant did not like that suggestion and the accused told her that he thought the suggestion was “disgusting”.

[18] From that point forward, the complainant stopped working with Nathan. She changed hotels because she was concerned about Nathan trying to find her. The accused arranged with a friend to have the complainant stay in a room at the Hilton Garden Inn in Mississauga as the complainant was not able to work at that point. The complainant remained there for a few days, and then went to another hotel to work.

[19] Once the complainant stopped working with Nathan, she and the accused were often sharing the same hotel room. From time to time, the accused was staying at his mother’s house or his father’s house and he was, as I will discuss below, incarcerated for some periods of time. There were also a few periods where the accused and the complainant were not staying together for other reasons. However, the complainant and the accused spent the majority of the time between November of 2015 and February of 2018 together.

c) The Nature of the Relationship

[20] The relationship between the accused and the complainant was an intimate one. There were significant time periods during the relationship in which they both thought of themselves as boyfriend and girlfriend.

[21] The accused introduced the complainant to his father and brother. In addition, the accused and the complainant took the accused’s daughter to the movies on one occasion. The complainant’s family lives in Northern Ontario, so the accused did not ever meet them. However, the accused was in contact with the complainant’s father by e-mail on a couple of occasions.

[22] Except for one brief period in 2017, the accused and the complainant spent their time together in hotel rooms. There were a couple of occasions where they stayed with the accused’s family. During the relationship, the accused sometimes was able to rent a car for the use of himself and the complainant. The funds to rent this car came from the complainant’s work.

[23] When the parties had a car, the complainant would do out-calls (where she would visit the client) on a more regular basis and the accused would generally drive her to and from these out-calls. On some occasions, the complainant’s clients would send an Uber for her so that she could go to the out-calls that way.

[24] In addition, the complainant would sometimes do in-calls, where she would see the clients in the hotel room. On those occasions, the accused would go downstairs or would go out to one of the local restaurants or fast-food establishments until the complainant had finished.

d) The Accused’s Incarcerations and the End of the Relationship

[25] The relationship between the accused and the complainant was tumultuous. During the course of the relationship, they both consumed cocaine and alcohol on a regular, if not daily, basis. The relationship was also characterized by a great deal of jealousy as well as accusations of infidelity. For the purposes of my reasons, it is only necessary to note the existence of the allegations of infidelity and the jealousy that they produced. It is not necessary to determine if they were true.

[26] The accused and complainant’s first separation came for approximately a week around Christmas of 2015. The complainant was given a plane ticket by her father to return home to visit her family, while the accused remained in Toronto.

[27] The complainant alleged that the accused sexually assaulted her in the hotel room where they were staying in March of 2016. This is one of the allegations on the indictment and I will review the underlying facts more fully below.

[28] At some point around April of 2016, the accused and the complainant met a man named Issa and two women who worked for him, Natasha and Kelly. Issa had originally rented cars to the accused. However, Issa was becoming a pimp and he was working with Natasha and Kelly.

[29] The complainant gave a statement to the police in May of 2016. Issa also gave a statement to the police in which he stated that the accused had threatened him. These statements appear to be what caused the accused to be arrested the first time. At that point, the complainant continued to work in the sex trade but was with Issa and not the accused.

[30] The accused was released from jail after approximately a week. He and the complainant then got into contact again. The complainant wanted the accused to come and pick her up from the hotel where she was working with Issa. The accused came and got the complainant. The complainant abandoned all her clothes and possessions when she walked out of the hotel where she was with Issa. These included her laptop.

[31] It is after his first incarceration that the accused stopped selling drugs. He was unable to maintain his contact list as he had lost his cell phone when he was arrested by the police and charged in relation to the incidents involving the complainant and Issa.

[32] At this point, the accused and the complainant continued to stay in hotels and spend money on cocaine and alcohol. The complainant continued to work in the sex trade and the accused was not really working much at all. There was another incident in the late spring of 2016 in which the accused got into an altercation at a fast food restaurant with two other individuals. The accused threw the first punch, so he was arrested and held in jail for another week. The complainant continued to work in the sex trade during the time the accused was incarcerated.

[33] The complainant and the accused also got into another argument with each other in July of 2016. They were staying at a hotel in Mississauga and the accused left the hotel room for a few minutes to calm down. When he returned, the complainant was gone. The accused attempted to contact the complainant and was eventually able to contact her through e-mail accounts that he had access to. They resumed their relationship after a week or so of separation.

[34] In September 2016, the accused and the complainant were staying at the Motel 6 on Argentia Road when the accused testified that he noticed that the woman working the front desk was a friend of Issa’s. Shortly after the accused saw this woman at the front desk, the police knocked on the door of the room where the accused and the complainant were staying. They arrested the accused on various charges relating to information that Issa had provided to the police.

[35] The accused was held in jail from September of 2016 to January of 2017. During the time that he was in jail, the accused received several letters from the complainant. Those letters (except for a couple of redactions) were entered into evidence and clearly show the continuation of the relationship between the accused and the complainant. Between September 2016 and January 2017, the complainant was back in Northern Ontario with her family.

[36] The complainant and the accused agree that the complainant was asked by the accused’s then-lawyer to come to Brampton to attend at the accused’s trial, which was scheduled for January of 2017. They disagree about whether the complainant was still needed for trial on the day that the complainant arrived at the courthouse. I will discuss that issue more fully below. I note, however, that there was no real dispute that Kelly, the same woman who had been working with Issa, had paid for the complainant’s plane ticket to come back to Toronto from Northern Ontario.

[37] The accused was released from prison in early January of 2017. He met the complainant and Kelly at the jail. The complainant went to the probation office where she signed a consent for the accused to be in contact with her. Then the complainant, Kelly and the accused went to a condominium where Kelly resided with her boyfriend. From there, the accused went to stay with his mother.

[38] For the next few weeks, the complainant was continuing to work in the sex trade. The accused was not staying with her and was not involved in her postings or other activities. The accused was trying to get the complainant away from Kelly. These efforts were unsuccessful until the complainant and Kelly had a falling out some weeks later over a ring that the complainant believed that Kelly stole from her.

[39] In the spring of 2017, the accused and the complainant resumed their previous pattern. The complainant was working in the sex trade and earning money. The accused was not working. They were continuing to consume alcohol and cocaine and were staying in a hotel room. The accused testified that he was tired of this life and wanted something more stable, so he was trying to get the complainant to leave the sex trade and stop doing drugs. I will have more to say on that evidence below.

[40] In any event, in October of 2017, the accused and the complainant moved into a spare room at the accused’s friend Anthony’s house. The accused testified that this move was part of the effort to leave the sex trade and the drug consumption behind. To that end, the accused testified that he had started working for Anthony, who had a plumbing business, as an apprentice. The complainant had, for a short period of time, stopped working in the sex trade.

[41] One evening in November of 2017, the accused got into an argument with the complainant. The accused testified that this argument started because the complainant had been offered the opportunity to work for a regular client and receive $1,000.00 and the accused did not want her to take the job. The complainant testified that she and Anthony’s girlfriend had been out and came back to the house when the argument started.

[42] The parties agree that the accused pulled the complainant out of the car. The accused said that he was trying to prevent the complainant from going back to work for a client. The complainant testified that she had returned to Anthony’s house but was refusing to get out of the car when the accused pulled her out. I will explore this incident more fully below.

[43] In any event, approximately a half an hour after the complainant left the house with Anthony’s girlfriend, the accused was arrested by the police and incarcerated. The accused pled guilty to assault and spent approximately ten days in jail. The accused was released on probation at the end of this period in jail. One of the terms of his probation was not to contact the complainant, as I understand that the accused pled guilty to the charge of assault.

[44] Despite this prohibition, the accused contacted the complainant and they resumed their relationship for a short period of time. On February 4^th, 2018, the complainant went to do an out call. The accused picked her up from this out call and they went to get food and then returned to the hotel room.

[45] When the accused and the complainant arrived back at the hotel room, they discovered that they did not have the room keys. The accused and the complainant got into an argument when the complainant went to go downstairs and get the keys. The accused shoved the complainant, causing her to drop the tray of drinks that she was carrying. The complainant then came back upstairs with a room key from the front desk and they then went into the room.

[46] Shortly after the complainant and the accused went into the room, someone from another room came and knocked on the door. The complainant then came back out of the room and went towards the stairs that lead to the front desk. The accused came out of the room and went in the opposite direction. The events in the hallway were captured on videotape which was presented in evidence.

[47] From this point, the complainant went to the police and made a report. The accused was arrested four days later and charged with a series of offences.

The Charges

[48] The accused is charged with the following offences:

a) that he, on or between the 1^st day of November, 2015 and the 4^th day of February, 2018, at the City of Mississauga, in the Central West Region, did receive 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 286.1(1), contrary to section 286.2(1) of the Criminal Code of Canada;

b) that he, on or between the 1^st day of November, 2015 and the 4^th day of February, 2018, at the City of Mississauga, in the Central West Region, did for the purpose of facilitating an offence under subsection 286.1(1) did procure, [the complainant] to offer or provide sexual services for consideration, contrary to section 286.3(1) of the Criminal Code of Canada;

c) that he, on or between the 1^st day of November, 2015 and the 4^th day of February, 2018, at the City of Mississauga, in the Central West Region, did for the purpose of committing or facilitating an offence under subsection 279.01(1) of the Criminal Code of Canada, conceal, remove, withhold or destroy any travel document belonging to, or any document that establishes or purports to establish the identity or immigration status of [the complainant], to wit: personal identification cards, contrary to section 279.03(1) of the Criminal Code of Canada;

d) that he, on or about the 4^th day of February, 2018, at the City of Mississauga, in the Central West Region, did unlawfully commit an assault on [the complainant], contrary to section 266 of the Criminal Code of Canada;

e) that he, on or between the 1^st day of March, 2016 and the 31^st day of March, 2016, at the City of Mississauga, in the Central West Region, did unlawfully commit an assault on [the complainant], contrary to section 266 of the Criminal Code of Canada;

f) that he, on or between the 1^st day of November, 2015 and the 4^th day of February, 2018, at the City of Mississauga, in the Central West Region, did recruit, transport, transfers, receives, holds, conceals or harbours a person, or exercise control, direction or influence over the movements of [the complainant], for the purpose of exploiting or facilitating the exploitation of those persons, contrary to section 279.01(1) of the Criminal Code of Canada;

g) that he, on or between the 1^st day of March, 2016 and the 31^st day of March, 2016, at the City of Mississauga, in the Central West Region, did commit a sexual assault on [the complainant], contrary to section 271 of the Criminal Code of Canada;

h) that he, on or about the 4^th day of February, 2018, at the City of Mississauga, in the Central West Region, did while bound by a Probation Order made by the Honourable Justice P. A. Shreck in the Ontario Court of Justice, Brampton on January 9, 2017, without reasonable excuse fail to comply with such order, to wit: Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with [the complainant], except – with the prior written revocable consent of the above named person(s) filed in advance, by that person, with the probation intake or the assigned probation officer. This may be cancelled by the person in any manner at any time, contrary to section 733.1(1) of the Criminal Code of Canada;

i) that he, on or about the 4^th day of February, 2018, at the City of Mississauga, in the Central West Region, did while bound by a Probation Order made by the Honourable Justice D. P. Cole in the Ontario Court of Justice, Toronto on January 25, 2017, without reasonable excuse fail to comply with such order, to wit: keep the peace and be of good behaviour, contrary to section 733.1(1) of the Criminal Code of Canada;

j) that he, on or about the 4^th day of February, 2018, at the City of Mississauga, in the Central West Region, did while bound by a Probation Order made by the Honourable Justice R. J. LeDressay in the Ontario Court of Justice, Brampton on November 28, 2017, without reasonable excuse fail to comply with such order, to wit: Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with [the complainant], except – with the prior written consent of the above named person(s) filed in advance, by that person, with the probation intake or the assigned probation officer after today’s date. This may be cancelled by the person in any manner at any time, contrary to section 733.1(1) of the Criminal Code of Canada.

[49] As I indicated, at the outset of the trial, the Crown withdrew Count #5. The Crown withdrew Count #3 at the conclusion of its case.

[50] The accused pled guilty to counts 8, 9 and 10 of the indictment at the conclusion of the evidence. I conducted a plea inquiry to ascertain that the accused understood the consequences of pleading guilty, and convictions will be entered on those charges.

[51] The accused also pled guilty to count #4 of the indictment, but only to the extent that the accused acknowledged committing an assault in the hallway of the Mississauga Gate motel outside of the room where he and the complainant were staying. That assault resulted from the argument that the accused and the complainant were having about the room keys. The accused admits that he shoved the complainant causing her to drop a tray of drinks that she was carrying. The accused denies that there was any subsequent assault inside the hotel room that he and the complainant were sharing. I will return to the extent of the accused’s guilt on count #4 below.

[52] Before leaving the charges, I should note that the validity of sections 286.2, 286.3(1) and 286.4 of the Criminal Code may be in issue in this case. Those sections have all been declared unconstitutional by my colleague Sutherland J. in R. v. N.S. 2021 ONSC 1628. If I enter convictions on one or more charges, the parties have agreed that we will then consider any challenge by the accused to the constitutionality of the provisions he has been convicted under.

Evidentiary Issues

[53] In separate reasons, released during the trial, I dealt with the section 276 application that the accused brought. My reasons (reported at 2020 ONSC 2836) dealt with the first stage of the application. The issues at the second stage were addressed with the assistance of counsel for the complainant. These issues were addressed on consent of all counsel, so brief written reasons were provided. They are not reported.

[54] During argument, counsel for the accused raised two additional evidentiary issues:

a) Whether I should instruct myself that the complainant’s evidence should be treated in accordance with the principles in Vetrovec v. The Queen 1982 CanLII 201, [1982] 1 S.C.R. 811.

b) Whether the evidence related to the assault charges should be subject to a similar fact application before it is used to consider the prostitution-related charges.

[55] I will deal with each issue in turn. Before addressing those issues, however, it is important at the outset to note two key points about the evidence in this case generally. First, I only had evidence from the accused and from the complainant. However, a determination of guilt or innocence in this case cannot devolve into a mere credibility contest or a binary choice. Instead, I must consider the evidence within the framework of R. v. W.D. 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, (1991) 63 C.C.C. (3d) 397. The way that evidence is weighed and credibility is analyzed in this type of case is set out by Hill J. in R. v. Johnson 2011 ONSC 195 at paras. 123 to 129. I adopt the principles expressed by Hill J. in those passages for the purposes of this case. Similar principles and a discussion of the principles of reasonable doubt specifically in sexual assault cases is set out in R. v. Nyznik 2017 ONSC 4392, 350 C.C.C. (3d) 335 (paras. 12-17).

[56] The complainant’s evidence in this case had both credibility and reliability problems. While I will discuss those problems more fully below, they include the following:

a) The complainant’s evidence about the accused keeping all of the money from the complainant’s work in the sex trade and only giving her money for expenses does not fit with the fact that all of the money the complainant earned was used to fund the purchase of food, alcohol, cigarettes, cocaine, hotel rooms and transportation for her and the accused. The complainant’s evidence on the accused keeping the money was not reliable.

b) The complainant’s evidence on how and why she came back to Toronto in January of 2017 was difficult to follow and did not fit with the underlying facts. When I consider the totality of the evidence on this point, I have concluded that the complainant made her own decision to return to Toronto to work in the sex trade with Kelly. She made this decision without the involvement of the accused.

c) The complainant’s evidence on the reasons for the November, 2017 assault was both difficult to follow and did not fit with the circumstances of the assault. I have rejected this evidence for reasons I will come to. However, it is important to note that this evidence was part of a larger tendency on the part of the complainant to overstate the role of the accused in her decision to work, and continue to work, in the sex trade.

d) The complainant’s evidence on the issues relating to control, direction or influence as described in paragraphs 128 and following below raise significant issues in respect of the credibility and reliability of the complainant’s evidence as a whole.

[57] The accused’s evidence also has some credibility and reliability problems. Two examples will illustrate those problems:

a) The accused’s evidence about the work that he was allegedly doing after he lost his cellphone in 2016 and was no longer selling drugs was problematic. Although the accused testified that he did landscaping work, he could not identify clients or explain how, where or when he did this work. I viewed the accused’s evidence on this point as an attempt to evade the fact that most of his living expenses from May of 2016 to February of 2018 were funded by the complainant’s work in the sex trade.

b) The accused’s evidence about why he was upset with the complainant for losing the keys to the hotel room on February 4^th, 2018 is not believable. He testified that the lost hotel key could have been used to get into their hotel room because the hotel had written the number of the room on the top of the card. This is not a reasonable or believable explanation.

[58] Second, it is open to the trier of fact to accept some, all or none of the evidence of a witness. See R. v. R. (D.) 1996 Can LII 207 (S.C.C.), [1996] 2 S.C.R. 291 at para 93. As will be seen, I have accepted some (but not all) of the evidence of both witnesses in this case.

a) Is a Vetrovec Direction Necessary?

[59] The accused argues that the complainant is a Vetrovec witness for three reasons:

a) The complainant has a pending charge of domestic assault from 2015 in Pembroke;

b) The complainant has failed to appear in Court to answer to this charge, which shows a lack of respect for the legal process.

c) The complainant was charged with theft and possession of marijuana and the theft charge was dropped because she paid back the money. This shows dishonesty.

[60] In support of this position, the accused has directed my attention to the Supreme Court of Canada’s decision in R. v. Khela 2009 SCC 4, [2009] 1 S.C.R. 104. Counsel focused his argument on the assertion that the complainant was not a reliable or credible witness.

[61] The Crown opposes the accused’s request. The Crown argues that the complainant does not have a criminal record, she is not an informant and the charges in Pembroke have not been dealt with yet. She received diversion for the theft under charge. As a result, the Crown argues that the accused’s claim that the complainant is a Vetrovec witness is not made out on this case.

[62] I start by acknowledging that Vetrovec warnings are not limited to a specific class or category of witness. Instead, they are provided in circumstances where the Court is concerned with the type of witness before them. As Fish J. put it in Khela, supra (at para 3):

[3] It is therefore of the utmost importance, in a trial by judge and jury, for the jury to understand when and why it is unsafe to find an accused guilty on the unsupported evidence of witnesses who are “unsavoury”, “untrustworthy”, “unreliable”, or “tainted”. For present purposes, I use these terms interchangeably. And I mean to include all witnesses who, because of their amoral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial, cannot be trusted to tell the truth — even when they have expressly undertaken by oath or affirmation to do so.

[63] It is not whether the trial judge personally finds the witness trustworthy, but whether there are factors which experience indicates that the witness’s evidence needs to be approached carefully. See Khela, supra para. 35. I also note that judges have a significant discretion on whether to provide a Vetrovec warning.

[64] In this case, I am not prepared to exercise that discretion because there is no evidence that the complainant is, in the words of Fish J., of amoral character. Further, notwithstanding my concerns about portions of her evidence, there is nothing in her history to suggest that she cannot, ab initio, be trusted to tell the truth. In my view, the complainant has few, if any, of the characteristics that one associates with a Vetrovec witness. For example, in Khela, supra, the informants had lengthy criminal records and were part of a prison-based gang. In this case, there is no evidence of either a lengthy criminal record or that the complainant was part of a gang.

[65] Counsel for the accused also focused on the inconsistencies in the complainant’s evidence as well as her possible motivations to lie. Those are both factors that can (and should) be considered in assessing the credibility of the complainant. These alleged problems do not, however, go to the question of whether the complainant’s evidence should be approached with caution before the content of that evidence is even considered.

[66] The Complainant is not a Vetrovec witness and a Vetrovec caution is not necessary. I would also note that there is Court of Appeal authority that supports the view that judges are not required to give themselves a Vetrovec warning in a judge alone trial because they are presumed to know the law. R v. Barkho 2016 ONCA 62 at para. 18.

b) Is a Similar Fact (or Other Disreputable Conduct) Application Necessary?

[67] The accused argues that the evidence relating to the assaults is prior disreputable conduct and should be the subject of a similar fact application before the Crown can rely on it for the prostitution charges. Counsel for the accused argues that the evidence on the assaults would be either propensity evidence or subject to cross-count admissibility. Therefore, counsel argues that the assaults that the accused has been charged with or previously convicted of can only be used for the prostitution counts if they meet the test for similar fact evidence.

[68] In other words, counsel for the accused argues that a similar fact application ought to have been brought by the Crown under the principles set out in R v. Handy 2002 SCC 56, [2002] 2 S.C.R. 908, 164 C.C.C. (3d) 481. In support of that position, counsel relies on a number of decisions including R. v Johnson 2011 ONSC 195, R. v Tsigirlash 2019 ONCA 650 and R v. M.R.S. 2020 ONCA 667.

[69] The Crown argues that a similar fact application is not necessary for the Crown to be able to use the evidence of the assaults as part of the prostitution offences. Counsel argues that an essential element of the prostitution-related charges (except for the material benefit charge) is whether the accused was exercising “control, direction or influence” over the Complainant. The use of physical violence is evidence that can be used to meet one of the essential elements of the prostitution related charges as physical violence can be a form of control.

[70] I accept the Crown’s position. A similar fact application under R v. Handy is not necessary to permit the Crown to use the evidence of the assaults for which the accused is charged as evidence on the prostitution-related charges. The assaults, if they took place, could be a part of the actus reus of both the exploiting and procuring charges that the accused before me faces.

[71] Similar fact evidence is presumptively inadmissible. It is only admissible if the facts relating to different events or transactions are sufficiently similar to the events underlying a count on the indictment. However, the assaults alleged in this case are not different transactions or events. They are, if proven, part of the alleged exercise of “control, direction or influence” by the accused over the Complainant. The alleged exercise of “control, direction or influence” is a continuing activity and not a discrete event. The alleged assaults are simply part of the evidence on the prostitution related counts of the indictment and are admissible as evidence on those counts.

[72] This brings me to the case-law that the accused has provided to me. Most of these cases deal with either cross-count admissibility of discrete evidence or cross-count admissibility of evidence in relation to different complainants. One example of each will suffice to show how the cases the accused seeks to rely on can be distinguished.

[73] Tsigirlash, supra was a case where the accused was charged with 47 different counts relating to possession of stolen property and fraud over $5,000.00. These charges stemmed from allegations that Mr. Tsigirlash was running an automotive shop that was, inter alia, taking stolen cars and using them for parts. The trial was a judge alone trial.

[74] In convicting Mr. Tsigirlash, the judge used evidence across the counts as similar fact evidence. The Court of Appeal found that the trial judge had erred in using the similar fact evidence across counts at least in part because the Crown had not made a request to do so. In my view, the reasoning in this case does not apply to the facts before me. Each one of the counts that Mr. Tsigirlash was facing related to separate events and separate cars. In the case before me, the alleged assaults are part of the evidence that relate directly to establishing the procuring and exploitation offences. Here, the evidence relating to the alleged assaults is not evidence of different offences that are being used to show that the accused is more likely to have committed the procuring or exploiting offences.

[75] Johnson, supra was a case where the accused was facing charges relating to trafficking for two separate complainants. In that case, cross-count admissibility was considered by the trial judge because the charges on each complainant related to a different series of events. Each complainant had come to know the accused through different events and each complainant’s alleged exploitation happened differently. Therefore, the Crown brought a complainant-to-complainant similar fact application on the basis that (at para. 91) “the prosecution’s evidence demonstrates a propensity on the part of the accused to ‘engage in parasitic relationships’ with girls…”. This is a classic example of the need for a similar fact evidence application as the evidence related to different charges of the same type that arose from a different factual matrix.

[76] In this case, however, I am not faced with either different charges of the same type or a different factual matrix. The alleged assaults are a part of what the Crown claims is a pattern of assaultive, abusive and manipulative conduct that the accused allegedly used to control the complainant. It is one pattern of conduct that gives rise to the exploitation and procuring charges, and not different events of the same type.

[77] In argument, I asked counsel for the accused whether a similar fact evidence application would be required if the Crown alleged that an accused had assaulted a complainant thirty-five times as part of his exploitation of her and the Crown had charged the accused with thirty-five counts of assault. Counsel stated that he would still be arguing that a similar fact application was necessary in those circumstances.

[78] This example illustrates the problem with the accused’s position on the similar fact application. The assaults may be individual events if the accused is charged with all of them and the evidence of each assault might require a similar fact application to be admissible on the other charges of assault. However, the assaults could all be part of the pattern of exploitative conduct and are all admissible as such on the prostitution related charges.

[79] Therefore, the extent to which I can use the evidence of assaults in this case is as follows:

a) The fact that the accused pled guilty to an assault in November of 2017 does not mean that the accused is more likely to have assaulted the complainant on one of the other dates on which he is charged with assaulting her.

b) The fact that the accused engaged in an assault in November of 2017 is relevant to the question of whether the accused was exercising control, direction or influence over the complainant. Of course, the extent to which that evidence is useful to proving the charges depends on my conclusions as to the circumstances of this assault.

c) Whether or not the accused assaulted the complainant on other occasions is a part of the essential elements of the prostitution offences regardless of whether the accused was charged with these assaults. In other words, if accepted, these other assaults are evidence that is admissible to prove the exercise of control, direction or influence by the accused.

[80] With these points in mind, I will now deal with the specific charges. Given my conclusions on the admissibility of the alleged assaults for my analysis of the prostitution related charges, I will set out my findings about the assaults first.

The Assault Charges

[81] The accused is facing one count of assault and one count of sexual assault. There was originally a second assault count in the indictment relating to the sexual assault. However, that charge was withdrawn by the Crown. I note that assault is a lesser included offence to sexual assault.

[82] In order to prove the assault charge on the facts before me, the Crown must demonstrate the following beyond a reasonable doubt:

a) That the accused intentionally applied force to the complainant;

b) That the complainant did not consent to the force that the accused intentionally applied; and

c) That the accused knew that the complainant did not consent to the force that the accused intentionally applied.

[83] For the sexual assault, the Crown must also prove beyond a reasonable doubt that the force that the accused intentionally applied took place in circumstances of a sexual nature. See R. v. Chase 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293 at paras. 11 and 12.

[84] I will now deal with the facts of each alleged assault.

a) The March 2016 Sexual Assault Charge

[85] The charge relating to the March 2016 sexual assault was not added to the indictment until after the preliminary inquiry because the complainant did not bring this allegation to anyone’s attention until she was testifying at the preliminary inquiry.

[86] I start with the observation that a delayed disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. R. v. D.D. 2000 SCC 43 at para. 65. Similarly, disclosure of these type of crimes done in a piecemeal manner by the complainant is subject to the same principles. R v. D.P. 2017 ONCA 263 at para. 28-31.

[87] In her examination in chief, the complainant stated that she and the accused got into an argument in March of 2016 and she tried to leave the hotel room. She stated that the accused grabbed her, brought her back into the hotel room and straddled her. The accused then began to punch the complainant in the face with his fists closed, causing (on the complainant’s evidence) bruising and swelling. The complainant testified that the accused then proceeded to have vaginal sex with her, but that she does not know how the issue of sex came up. The complainant testified that the police were called to the hotel where she and the accused were staying because she and the accused were fighting and they were smoking in a non-smoking room. She does not remember exactly when the police were called to the hotel room, and it is possible it could have been on a different date.

[88] The accused denies the assault and sexual assault ever took place. The accused acknowledges that the police were called to the hotel where he and the complainant were staying in March of 2016, but that it was because he and the accused were smoking in a non-smoking room.

[89] There are frailties and inconsistencies in the complainant’s evidence that, when considered as a whole, leave me with a reasonable doubt as to whether this assault took place. The frailties begin with the fact that the police were called to the hotel around the time the alleged assault took place. The complainant says that the police were called because she and the accused were fighting. However, the complainant also acknowledged that the police never interviewed her separately and that the police just told her and the accused to leave the hotel. The police also supervised the complainant and the accused until they took their personal belongings and left.

[90] If the police had been called to the hotel because there was a fight between the accused and the complainant, it is at least reasonably possible that they would have interviewed both people involved in the fight especially since the complainant testified that her face was bruised and swollen as a result of the assault. The fact that the police just escorted the complainant and the accused off the property suggests that the accused’s explanation as to why the police were called is correct and that there was no assault (of either a sexual or non-sexual nature) on the complainant on the day the police were called.

[91] Victims of sexual assault often have difficulties remembering details of the sexual assault. In this case, the complainant could not explain how the sexual assault portion of the assault happened. Normally, this lack of detail would not be a concern to me. However, in this case the complainant also testified in cross-examination that she had a “vivid” memory of the sexual assault and of the events leading up to it. It is difficult to reconcile these two facts with each other.

[92] As I discuss elsewhere in these reasons, there are other frailties with the complainant’s evidence (see, inter alia, paragraph 56). These frailties also raise a reasonable doubt about the complainant’s evidence in relation to whether this sexual assault actually took place.

[93] While it is possible that this sexual assault may have happened, I am not convinced beyond a reasonable doubt that it did happen. An acquittal will be entered on this count on the indictment.

b) The February 4^th, 2018 Assault Charge

[94] This charge stems from events that took place at the Mississauga Gate Motel on February 4^th, 2018, which is the date on which the accused’s relationship with the Complainant ended. The accused and the complainant had interactions in both the hallway and the hotel room. The accused has admitted that the interactions in the hallway amounted to an assault. There is a factual dispute over what happened in the hotel room.

[95] The interactions of the parties outside the hotel room were recorded, so there is a clear video record of what happened. There is no sound on the video. The accused and the complainant agree that the complainant had been out on an “out-call” and the accused had picked her up when the call finished. They stopped and got some take-out fast food and went back to the hotel room to eat.

[96] In the hallway outside the room, the accused and the complainant discovered that they did not have the keys to the hotel room. The accused and the complainant got into an argument about the room keys, which they did not have. The complainant and the accused then walked past the door to their room towards the stairs leading to the front lobby. Right near those stairs, the accused shoved the complainant, causing her to drop the drinks. The accused acknowledges this shove and agrees that it amounts to an assault. There may also have been some grabbing on the part of the accused although that is not at all clear on the video, and the video also shows the complainant shoving back.

[97] In her examination-in-chief, the complainant stated that she was dragged and grabbed when she went to get the room key. What I observed on the video was the parties walking down the entire length of the hallway separately and then, at the stairs, there being a very brief (less than fifteen seconds) interaction which is difficult to see. If the complainant was grabbed, it was not for very long and I did not observe the complainant being dragged on the videotape. As a result, I conclude that the complainant’s evidence of that evening is not entirely reliable. She has overstated the events, even those caught on video.

[98] The complainant then went downstairs to get room keys. She returned to the hotel room and she and the accused entered the hotel room. They were inside the hotel room for just about two and a half minutes when a guest in a nearby room came down the hallway and knocked on the door of the room where the accused and the complainant were staying.

[99] The testimony of the complainant and the accused diverge on what happened in the room. The complainant states that, when she and the accused entered the hotel room, the accused got mad when he found the room keys that had been misplaced in the room. When the accused “freaked out”, the complainant told him to leave. The accused held his hands over the complainant’s mouth so she could not scream. The accused was also allegedly grabbing the complainant’s hair and blocking the door with his foot. The complainant then banged on the door and screamed, the other guest came to the door, and the complainant left to go to the front desk. The complainant asked the front desk to call the police.

[100] The accused’s version of events is somewhat different. The accused acknowledged the assault in the hallway. However, he explained that the fight had started because the complainant had lost the room keys. The accused was upset that a customer or an Uber driver could then have access to their room.

[101] In cross-examination, it was put to the accused that there were hundreds of hotel rooms at the Mississauga Gate Inn and that there was no merit to his safety concerns. In response to this question, the accused stated that the Mississauga Gate Inn wrote the numbers of the rooms on the room cards in indelible black marker. This explanation strains credulity. It is unlikely that a hotel is going to write the room number on the access card. I view this explanation as the accused attempting to explain why he was angry over the room key when it was a minor incident that did not justify the level of the accused’s anger and I reject the accused’s evidence on this point.

[102] This brings me to what happened in the hotel room. The accused testified that it was the complainant who threw the misplaced room keys at him when they were found. The accused testified that they started yelling at each other and that the complainant stated that she was leaving. The accused blocked the door and the complainant told him that she would yell if the accused didn’t get out of her way. The accused testified he tried to talk reasonably to the complainant, but then she screamed. There was a knock on the door and the accused stepped out of the way and the complainant left the room.

[103] The major difference in the evidence between the complainant and the accused is the extent of the physical interaction in the hotel room. The complainant testified that the accused had his hand over her mouth to prevent her from screaming. There was also some suggestion that the complainant was pinned down on the bed by the accused during this interaction, although that evidence was less clear.

[104] The interaction in this case was quite short, as it was about two and a half minutes between the time that the accused and the complainant went into the hotel room and the time the other guest left her room after hearing the complainant’s scream. It is, therefore, difficult to know with any certainty what happened in this interaction.

[105] On this incident, I am left in a reasonable doubt by the totality of the evidence. The complainant’s evidence that she was grabbed and dragged when she was in the hallway is, on my view of the videotape unreliable. This unreliability raises questions about the complainant’s evidence on everything that happened in this incident. If the complainant’s evidence about what happened in the hallway is unreliable when compared to objective evidence, then there are real concerns about whether her evidence of what happened in the hotel room a few minutes later can be accepted beyond a reasonable doubt.

[106] Having found frailties in the evidence of both the complainant and the accused on this incident, I am left in a state of reasonable doubt about whether there was another assault in the hotel room. Therefore, a conviction will be entered on the charge of assault on February 4^th, 2018 but only for the incident in the hallway.

c) Conclusions

[107] For the foregoing reasons, I find the accused not guilty of the sexual assault charge. I find the accused guilty of the assault charge, but only to the extent of the incident seen on videotape in the hallway.

The Sex Trade Related Charges

[108] The accused is facing one count of receiving a material benefit under section 286.2(1) of the Criminal Code, one count of procuring under section 286.3(1) of the Criminal Code and one count of exploitation under section 279.01(1) of the Criminal Code.

[109] These provisions of the Criminal Code are both complex and relatively new. Therefore, I will set out some of the general principles that apply to each section. I will then set out my findings of fact and conclusions on each of the different charges, starting with the exploitation charge.

a) The Law

[110] The relevant provisions of the Criminal Code state:

286.2(1) Every person 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 286.1(1), is guilty of

• (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

• (b) an offence punishable on summary conviction.

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.

279.01(1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable

• (a) to imprisonment for life and to a minimum punishment of imprisonment for a term of five years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or

• (b) to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years in any other case.

[111] I considered some of these provisions in R. v. Antoine 2019 ONSC 3843. In addition, I was provided with three recent Court of Appeal cases, R v. Gallone 2019 ONCA 663, R v. Joseph 2020 ONCA 733 and R v. Ochrym 2021 ONCA 48. I will start my analysis with the human trafficking provision in 279.01, as the words “control, direction or influence” appear in several places in the provisions that I have to consider in this case.

[112] In order to establish a violation of section 279.01 the Crown must establish:

a) The exercise of control, direction or influence over the movement of a person; and

b) That the control, direction or influence over the movement of that person was for the purposes of exploiting or facilitating the exploitation of that person.

[113] The phrase “exercise control, direction or influence” has been the subject of much judicial comment. Each word in this phrase means something different, and they are on a descending scale of strength. As the Quebec Court of Appeal noted in R v. Perreault (1996) 1996 CanLII 5641 (QC CA), 113 C.C.C. (3d) 573:

11. 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.

[114] This definition has been adopted in Gallone, supra. In that case, the Court of Appeal also noted (at para. 47) that influence can be exercised while still allowing a person’s free will to operate. In other words, influence amounts to no more than persuading someone to engage in the sex trade either through words or actions.

[115] It should also be noted that the offence requires the Crown to 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 purpose. See R. v. A.A. 2015 ONCA 558 and R. v. Urizar 2013 QCCA 46 at para. 69.

[116] For the second element, the Crown must show that the control, direction or influence was exercised for the purpose of exploitation. However, the Crown is not required to show that exploitation actually took place. Gallone, supra at para 54, Antoine, supra at para. 33.

[117] Exploitation is defined in section 279.04 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

o (a) used or threatened to use force or another form of coercion;

o (b) used deception; or

o (c) abused a position of trust, power or authority.

[118] The decision in A.A. supra sets out a series of conclusions that flow from the language of section 279.04 as follows:

a) The expectation of the specific belief engendered by the accused’s conduct must be reasonable, thus introducing an objective element to the offence;

b) The determination of the expectation is to be made on the basis of all the circumstances of the case;

c) The person’s safety need not actually be threatened.

[119] This brings me to the procuring offence, which is set out in section 286.3. The actus reus of this offence can be established in any one of three ways (R. v. Evans 2017 ONSC 4028, Antoine, supra at para. 39):

a) By procuring a person to offer or provide sexual services for consideration;

b) By recruiting, holding, concealing or harbouring a person who offers 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.

[120] 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 actions. This is a high, specific intent mens rea. Joseph, supra at para. 88.

[121] Finally, there is the material benefit charge. First, this offence requires receipt of a benefit. A benefit is not defined in the Criminal Code, but can include something beyond purely a financial benefit, as the language of the section says, “financial or other material benefit”.

[122] In R v. Esho and Jajou 2017 ONSC 6152, MacDonnell J. made the following observations about section 286.2 (at para 123):

[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.

[123] In addition to receiving a material benefit, the accused must know that the benefit came from prostitution. Knowledge can include willful blindness. However, in this case, the accused’s knowledge is not an issue.

[124] Finally, the Criminal Code sets out exceptions to the offence of receiving a material benefit. I will address those exceptions when I come to analyze the facts relating to the material benefit charge.

b) Exploitation Charge

[125] Both the accused and the complainant acknowledged that they viewed themselves as having been in a boyfriend-girlfriend relationship at least some of the time that they were together. The evidence that was tendered, including the letters the complainant sent to the accused in the fall of 2017 when he was incarcerated support the fact that they both viewed themselves as boyfriend-girlfriend. However, the relationship must still be analyzed to see whether the accused was exercising control, direction or influence over the complainant for the purposes of having her work in the sex trade.

[126] There are four different areas that the Crown points to in support of the conclusion that the accused was exercising control, direction or influence over the complainant:

a) The accused was controlling the services that the complainant was providing when she was working as an escort.

b) The accused was controlling the money that the complainant earned from her work as an escort.

c) The accused was regularly assaulting the complainant in low grade assaults such as hair-pulling and slapping.

d) The accused was manipulating the complainant into returning to work as a sex worker.

[127] Evidence of the exercise of control, direction or influence in any one of these areas would be sufficient to establish the first element of the test for the exploitation offence. I must also consider whether the evidence, when taken as a whole, establishes control, direction or influence even if control, direction or influence are not made out in any one area. I will review each area in turn and then set out my conclusions on the issue of control, direction or influence. Finally, I will set out my conclusions on the second element of this offence, which is whether the accused was controlling the complainant for the purposes of having her engage in the sex trade.

A) Control of the Complainant’s Services

[128] The complainant testified that the accused controlled the services that she provided. Her testimony focused on the differences between the services she offered when she was working for Nathan and the services she offered when she was with the accused. Both when she was with Nathan and with the accused, the complainant refused to provide either “Greek” or anal sex, and that was her choice. However, when she was with the accused, she had also agreed not to provide any services without protection, that there would be no kissing and that there would be no “black gentlemen”.

[129] The testimony of both the accused and the complainant was that the restriction on unprotected sex for both vaginal and oral sex was something that had been agreed to between them because the complainant and the accused were in a relationship. The evidence on the restriction involving black gentlemen was less clear as to either how this restriction came to be or who suggested it. Further, as I note at paragraph 134, infra, the complainant’s evidence about where she got the information for her BackPage postings was inconsistent. Therefore, the most that can be said about the discussion of what services were being provided is that the accused was exercising influence over the complainant.

[130] The complainant also testified that the accused monitored her use of condoms by looking at the serial numbers on the condoms. The accused denied this claim. I accept the accused’s evidence on this point. The complainant’s evidence on this point is internally inconsistent in at least one respect. While she testified that the accused monitored the serial numbers on the condoms, she also testified that she would usually pick up the condoms and that the accused only picked them up for her if she forgot. If the accused was engaged in such a high level of control over the complainant’s activities that he monitored the serial numbers on condoms, then I would expect that he would also closely control the purchase and distribution of condoms. Given the inconsistencies in the complainant’s evidence on this point, I conclude that the accused did not monitor the complainant’s condom use at all.

[131] Then, there is the restriction with respect to “black gentlemen”. The complainant alleged that the accused placed this restriction on her. The accused said that this was the complainant’s restriction. Resolving this dispute requires some consideration of who prepared the advertisements on BackPage. In her testimony before me, the complainant alleged that she prepared the advertisements but that the accused would tell her what to put in the advertisements and how to respond to texts that she got from clients. However, the complainant’s testimony on this point is both internally inconsistent and inconsistent with previous statements she gave.

[132] I start with the internal inconsistencies. The Complainant acknowledged that, when she was with Nathan, he was the one who prepared all of the postings on “BackPage”. The complainant did not know how to post on BackPage and, at one point, testified that she figured out how to do it. Later in her trial testimony, the complainant testified that both she and the accused figured out how to post on BackPage together. Then, the complainant testified that the accused would tell her what to put in the BackPage postings.

[133] This brings me to the inconsistencies with prior statements. First, the complainant testified at trial that the accused would tell her what to put in the postings. At trial, the complainant was asked if she would get the information to put in her posts by looking at the posts of other sex trade workers on BackPage. The complainant rejected this assertion as “wrong” and was then taken to her evidence on the preliminary inquiry where she stated that the information came from posts from other sex trade workers that she had reviewed. The complainant adopted this testimony even though she had definitively stated the assertion was wrong just a few questions previously.

[134] While this may seem like a small inconsistency, I view it as significant for two reasons:

a) It is a clear inconsistency, and there was no good explanation as to why the complainant had provided inconsistent evidence in such a definitive manner.

b) The inconsistency was part of a larger tendency for the complainant to overstate the role of the accused in her work in the sex trade.

[135] Second, on February 4^th, 2018 the complainant was interviewed by Cst. Devlin of the Peel Police. In that interview, the complainant stated that, at the outset of her relationship with the accused, she was the one who set all of the rules about what services she provided, she did all of the advertising and all of the contacts with the customers. This is inconsistent with her evidence before me that the accused controlled what services the complainant offered.

[136] When these inconsistencies are reviewed, it is difficult to accept that the accused was controlling either the services that the complainant provided or the content of her advertisements. Further, there is a different explanation for the relationship between the accused and the complainant, at least at the outset.

[137] At the preliminary inquiry, the complainant acknowledged that the accused and she had a conversation in which they agreed that the complainant would continue working in the sex trade and the accused would be able to access some of the complainant’s clients to sell them cocaine. In other words, at the outset, the parties would each continue to generate income through the activities that they were doing when they met. It was only when the complainant had these statements from the preliminary inquiry put to her that she adopted them.

[138] The complainant testified that this arrangement only lasted for a month until the accused stopped dealing drugs. The accused testified that he continued to deal drugs until he was arrested in May of 2016 and lost his cellphone. I accept the accused’s evidence on this point for two reasons:

a) The accused is more likely to remember when he stopped selling drugs than the complainant is. Indeed, the complainant’s evidence on the precise date was somewhat vague.

b) The explanation as to the reason the accused stopped dealing drugs fits with the date of the first arrest and makes sense in the context of how the accused was managing his clients through his cellphone.

[139] There are considerable frailties in the complainant’s evidence on these points. Therefore, when all this evidence is considered, I reject the Crown’s assertion that the accused was doing anything more than exercising some influence over the complainant by insisting that she use protection when engaging in sexual activities with clients. The accused had no other influence over the services that the complainant provided.

B) Control of the Money

[140] The complainant’s evidence in chief was clear that the accused kept the money that she earned in his jacket. The complainant testified that she gave the money to the accused after each call so that she would not get robbed at the next call. The complainant also testified that the accused would let her use the money to pay for the hotel rooms, food and cigarettes, but would not let her use the money to go shopping or anything like that.

[141] The accused testified that he kept the money the complainant earned in his jacket because she wanted him to keep it and that this was not done on a consistent basis. The accused also testified that the money the complainant earned was almost entirely spent on their daily expenses. Those expenses included alcohol, both purchased at the LCBO and at “after hours” vendors, cocaine, food, cigarettes and the hotel rooms in which the accused and the complainant stayed.

[142] When the complainant was cross-examined on the money, she ultimately agreed that most, if not all, of the money that she earned in the sex trade was spent on the food, room, alcohol and drugs that the accused testified that it was spent on. In other words, there was very little, if anything, left for shopping or other expenses.

[143] In my view, the complainant overstated the role of the accused in managing and controlling the money she earned in this case. There was almost no money left over at the end of a day or a week. As a result, I accept the accused’s evidence that he did not control the money that the complainant earned.

C) Assaults on the Complainant

[144] The accused has pled guilty to assaulting the complainant on two separate occasions, in November of 2017 and February of 2018. I accept that those assaults took place. I have already set out my conclusions on the February 2018 assault.

[145] The November 2017 assault took place in the driveway area of the accused’s friend’s Anthony’s house. The accused’s testimony was that he and the complainant had gone to live with Anthony so that they could try and get a fresh start away from the lifestyle that they had been leading. The accused testified that the complainant had received a message from a regular client (identified as Faizal) asking her to provide various services with a significant amount of money promised for these services.

[146] The accused also testified that he did not want the complainant to go and see Faizal, but the complainant wanted to make the money which I understand was a significant amount. As a result, the accused got into a physical altercation with the complainant and attempted to prevent her from leaving the house.

[147] The complainant’s version of events is not all that different, although it is less clear than the accused’s version. The complainant testified that she had been helping Anthony’s girlfriend Corry move some personal belongings out because Anthony and Corry were breaking up. The complainant testified that, when she returned to the house, the accused dragged her out of the car. The complainant denied that the accused was preventing her from going to see Faizal.

[148] However, the complainant testified that after the accused was arrested and taken to jail, she stayed at Anthony’s for another day or two and then took her belongings and went to stay with Faizal. The complainant testified that Faizal provided her with cocaine as well as a place to stay. The fact that the complainant went to stay with Faizal after the accused was incarcerated suggests that the accused’s version of why the assault in November of 2017 took place is correct.

[149] The accused’s evidence that he was trying to prevent the complainant from leaving to go and see Faizal also fits with the description that both parties gave of the assault. The accused pulled the complainant out of the car against her will.

[150] I also note that the complainant’s version of events does not fit with the description of the assault that both she and the accused gave. The complainant testified that she and Corry (Anthony’s girlfriend) had come back to Anthony’s house after dropping Corry’s belongings at her mother’s house. It is unlikely that the accused would have pulled the Complainant out of the car if she had just returned to the house. It is far more likely that he was pulling her out of the car to try and prevent her from leaving the house. On the basis of this evidence, I accept that the assault took place because the accused did not want the complainant to go and earn money from Faizal, a regular client, and that the complainant wanted to accept the work offered by Faizal.

[151] This brings me to the question of assaults more generally. In her evidence before me, the complainant testified that, throughout the years, the accused beat her, stole her money and raped her. The complainant also testified that she had stopped wearing her hair in a bun because the accused used to grab it all the time and pull her hair. She also testified as to other lower level assaults.

[152] The accused denies assaulting the complainant other than on the occasions where he has pled guilty including on the one occasion where he pled guilty in this case.

[153] On this point, I do not completely accept either the accused’s or the complainant’s evidence. The complainant testified that the assaults would often take place when the accused was coming down from a high from using cocaine. The accused and the complainant also used cocaine several times a week (and sometimes daily) during their relationship. It is, therefore, quite possible that the accused assaulted the complainant on at least some occasions during their relationship and I accept that evidence to the extent that I conclude that there was some hair pulling, slapping and other lower level assaults.

[154] I do not accept the complainant’s characterization of the assaults as the accused beating her and raping her regularly. For reasons that I have set out elsewhere in this decision, I have concluded that the complainant has regularly overstated what happened between her and the accused.

[155] Establishing that there were some assaults is not the end of the inquiry. The key question is whether the accused assaulted the complainant in order to exercise control, direction or influence over her. The assault in November of 2017 was part of a clear plan to exercise control over the complainant by preventing her from performing work in the sex trade, at least for one client. This assault does not advance the Crown’s argument in any way.

[156] The remainder of the assaults do not seem to be part of a pattern of the accused trying to exercise control, direction or influence over the complainant for the purposes of having her remain in the sex trade. Even on the complainant’s evidence, the explanation for these assaults is that they were a result of the accused’s use and abuse of cocaine. In reaching this conclusion, I should not be taken as minimizing the victimization and pain that the complainant was subjected to as a result of these assaults.

D) Manipulation of the Complainant

[157] The Crown pointed to several incidents that demonstrated the complainant was being influenced by the accused to return to work in the sex trade. The four key ones are:

a) The complainant’s return to the Toronto area in January of 2017

b) The e-mail that the accused sent to the complainant about her mother.

c) Checking and reading the complainant’s text and Facebook messages.

d) The purchase of a jacket and boots for the complainant after the accused was released from jail in December of 2017.

[158] I start with the complainant’s return to Toronto in January of 2017. The complainant testified that she returned to Toronto in January of 2017 to give a statement to the accused’s lawyer for his criminal trial. The accused testified that the complainant was originally asked to come back to Toronto to provide evidence to his lawyer but that the case resolved before the complainant returned.

[159] I reject the accused’s evidence on this point. The complainant attended at the courthouse on the very day that the accused was being released from jail. This suggests that her presence was necessary right up to the last minute before the accused’s trial. There was also no evidence that the accused told the complainant that she was not needed for his trial.

[160] However, the fact that I reject the accused’s evidence about this incident does not mean that I accept the complainant’s evidence on this point. It also has frailties. The complainant testified that she came back to Toronto to assist with the accused’s criminal trial. However, the complainant testified that she obtained the money for the plane ticket from Kelly, who was one of the girls working with Issa, and Kelly’s boyfriend.

[161] The complainant testified that Kelly contacted her randomly on Facebook and asked her to come back to Toronto for the accused’s trial. However, the complainant was unable to explain either how or why the accused had contacted Kelly. The complainant was also unable to explain the arrangements that she had made to pay Kelly and her boyfriend back for the plane ticket.

[162] Once the complainant met the accused at the Courthouse in January of 2017, they spent a little bit of time together. However, the complainant spent the next three weeks staying at Kelly’s condominium. The complainant was working in the sex trade while she was staying at Kelly’s.

[163] The accused was in jail from September of 2016 to January of 2017 in part because of complaints made by Kelley’s pimp, Issa. It is unlikely that the accused would have used Kelley to either communicate with the complainant or to relay money to the complainant for a plane ticket. It is more likely that Kelley was asking the complainant to come back to Toronto so that the complainant would work in the sex trade with her. This is, in the event, what actually happened for the first three weeks after the complainant returned to Toronto. Therefore, I find that the complainant came back to Toronto because she had decided that she was going to work in the sex trade with Kelly. The accused had no involvement in that decision.

[164] This evidence is also important because it demonstrates the complainant’s tendency to overstate the accused’s involvement in her decisions about participating in, and remaining in, the sex trade.

[165] In her examination in chief, the complainant stated that she wanted to leave the sexual services business “all of the time” and that she told the accused about this desire not long after the two of them met. This statement does not fit with the evidence about either the assault in November of 2017 or, more importantly, the evidence about the complainant’s work in the sex trade in the time periods when she was not with the accused. It also does not fit with the complainant’s return to Toronto in January of 2017.

[166] This brings me to the e-mail that the accused sent to the complainant. It reads as follows:

Your [sic] the most beautiful woman in the world. Don’t do anything that degrades u for anyone. Think about what your mother would want for u and dont sell yourself short for anyone not even me. U are a good woman despite how much I feel crushed you u. Please promise me one thing , that everything I’ve taught u about being strong and brave stays with u. I love you always and if someone ever fuks with u just let me know and I will help you whichever way i can. I love you and im sorry i wasn’t able to show u the way u wanted me to show you but just know i loved u so much that I can’t even say it with words. I love u the world times infinity can best describe it. But I’m ready to settle down and u still want to be a party girl. Maybe in another life. Good night babe. And I hope u can keep in touch and realize u don’t need to ignore me and feel like we cant b friends. I love u forever D***. I wish we could’ve had a family.

[167] In cross-examination, the Crown suggested that the accused knew that the complainant’s mother was deceased and that he was attempting to manipulate the accused into returning to the sex trade with this e-mail. There are two problems with this assertion:

a) The e-mail, when read as a whole, shows the accused’s desire to have a relationship with the complainant rather than having her continue working in the sex trade.

b) The e-mail must also be read in the context of my findings about the November 2017 incident. The accused was interested in leaving behind the lifestyle that he had with the complainant and leaving behind her work in the sex trade.

[168] The third area that was raised in terms of control, direction or influence was the accused’ reviewing the complainant’s text and Facebook messages. The accused was reading the complainant’s text and Facebook messages. However, both parties testified that there was a lot of jealousy and distrust throughout their relationship. This jealousy and distrust went both ways, with the complainant being upset at one point because she thought the accused was involved with another woman.

[169] I do not view the fact that the accused read the complainant’s text messages as demonstrating that the accused was exercising control, direction or influence over the complainant except to the extent that one would see in a boyfriend/girlfriend relationship where there was a lot of jealousy and distrust.

[170] This brings me to the purchase of the coat and boots. The accused testified that, after he was released from jail in December of 2017, he had started to receive Ontario Works and that he used a significant portion (although less than half) of his Ontario Works payment in order to purchase a winter coat and boots for the complainant.

[171] The complainant testified that the accused contacted her in December of 2017 and told her that he had purchased those items for her. It was on this basis that the complainant agreed to meet the accused again. The accused and the complainant almost immediately went back into the lifestyle that they had been living before the accused’s November, 2017 arrest.

[172] This incident, on its own, would be troubling. It raises questions about the accused’s motivations and intentions for trying to get back together in a relationship with the complainant. However, this incident does not exist on its own. The context of the whole relationship between the complainant and the accused must be considered in evaluating this incident. In light of that context, this incident is more benign because it is part of the on again/off again nature of the relationship between the accused and the complainant.

E) Overall Conclusions on Control, Direction or Influence

[173] When two parties are in a relationship, there is bound to be at least some influence exercised by each party over the other. In this case, the parties were in a longer-term relationship where they regarded each other as “boyfriend-girlfriend”. There is clear evidence that the accused exercised some influence over the complainant, particularly with respect to the services that she provided. There is also the troubling incident with the jacket and the boots that I have described at paragraphs 170-172.

[174] However, there are also significant areas where the accused did not exercise control, direction or influence over the complainant. Specifically, the accused did not exercise control, direction or influence over the complainant’s decision to continue to work in the sex trade on the occasions when they were not together.

[175] I find that the accused was not exercising either control or direction over the complainant. At most, the accused was exercising influence over the complainant in the services that she was providing. Having concluded that the accused was exercising some influence over the complainant, I must then consider the question of what the accused’s purpose was in exercising that influence.

F) What Was the Accused’s Purpose?

[176] The second part of the test for exploitation requires me to determine whether the accused was seeking to either exploit the complainant or facilitate her exploitation. I find that the accused was not exercising influence over the complainant for the purposes of exploiting her or facilitating her exploitation.

[177] The November 2017 assault is a key moment for understanding both the relationship between the parties and the accused’s goals in this case. As I described at paragraphs 145-150, the accused’s goal in that assault was to prevent the complainant from continuing to work in the sex trade. She went and continued to work in the sex trade in spite of the accused’s attempts to prevent her from going. Further, she went to the police and filed a complaint about the accused’s assault.

[178] This assault is part of a broader narrative in the relationship between the accused and the complainant. At paragraph 165, I have noted the complainant’s assertion that she continually wanted to leave the sex trade and regularly told the accused that. I reject this evidence for two reasons

a) The complainant continued to work in the sex trade even when the accused was not incarcerated.

b) The November, 2017 incident does not accord with the complainant’s evidence.

[179] Then, there are some of the e-mails between the accused and the complainant. As I have noted, there were a couple of times when the parties were separated. Specifically, in July of 2016 there was a period of approximately a week when the accused and the complainant were not together. The accused was trying to find the complainant by using e-mail accounts that they both had access to. As part of the accused’s efforts to find the complainant, he copied the complainant’s father on a couple of these messages. This is conduct that would generally be seen as being inconsistent with exercising control, direction or influence over someone for the purposes of exploiting them.

[180] More generally, while the accused went through the complainant’s text messages and e-mails, he did not take any steps to prevent the complainant from talking to her family. The complainant testified that she was able to (and did) telephone her father and other family members regularly.

[181] Therefore, when all the evidence is reviewed, I am not satisfied beyond a reasonable doubt that the accused was exercising control, direction or influence over the complainant for the purposes of exploiting her or facilitating her exploitation. For those reasons, a verdict of not guilty will be entered on that count of the indictment.

c) Procuring

[182] The accused has also been charged with one count of procuring the complainant under section 286.3. The actus reus of this offence is set out in paragraph 119. I have already found that the accused did not exercise control, direction or influence over the movements of the complainant within the meaning of this section.

[183] This brings me to the question of whether the accused procured the complainant to offer or provide sexual services. As noted in Joseph, supra, (at paras. 68-69), procure means to “intentionally cause, induce or persuade someone to do something.” Procure has a broad meaning.

[184] I have set out a detailed consideration of the evidence in my discussion on the exploitation charge. My factual analysis applies for this offence as well. Based on that analysis, procuring is not made out in this case for three reasons:

a) The complainant was already working in the sex trade when she met the accused. He did not procure her to work in the sex trade.

b) The accused was not completely supportive of the complainant’s decision to work in the sex trade. In fact, on at least one occasion he actively attempted to stop the complainant from working in the sex trade.

c) The complainant continued to work in the sex trade while she and the accused were separated and while the accused was in jail.

[185] This brings me to the final part of the test, which is the recruiting, holding, concealing or harbouring a person who offers sexual services for consideration. The accused did not recruit the complainant. He also did not conceal or hold the complainant. The final word in this part of the test is harbouring. I turn to the question of whether the accused was harbouring the complainant at any point in their relationship.

[186] Harbouring is something broader than concealing. As the Court of Appeal noted in Joseph, supra (at paras. 74 and following) it includes providing shelter to the complainant and does not require secrecy. There were a couple of occasions where the accused harboured the complainant as follows:

a) When the complainant stopped working for Nathan, the accused arranged for a hotel room to be provided for her.

b) When the complainant fled from Issa in the spring of 2016, the accused had his father pay for a hotel room for the complainant.

[187] However, I am also mindful of the high specific intent that exists for this offence. The accused must have intended his specific actions to generally result in the complainant working in the sex trade. On the evidence I have, I am not persuaded beyond a reasonable doubt that the accused intended to have the complainant work in the sex trade when he arranged these hotel rooms for her. These hotel rooms were for the purposes of protecting the complainant. The accused did not have the specific intent of having the complainant provide sexual services when he harboured her on these occasions.

[188] This brings me to the other times that the accused and the complainant shared a hotel room. On the facts of this case, the complainant paid for most if not all of those hotel rooms out of the money that she was earning from her work in the sex trade. It cannot be said that the complainant was being harboured by the accused on these occasions. The complainant was providing her own shelter.

[189] For the foregoing reasons, I am not persuaded beyond a reasonable doubt that the accused procured the complainant to work in the sex trade and an acquittal will be entered on this count on the indictment.

d) Material Benefit

[190] The accused clearly received a benefit from the complainant’s work in the sex trade. The complainant used her earnings to pay for the accused’s accommodation, meals, alcohol and cocaine. Further, the accused knew that the money the complainant was using to pay for the accommodation and other benefits came from her work in the sex trade.

[191] Counsel for the accused focused his arguments on the exceptions in section 286.2(4). That section states:

(4) Subject to subsection (5), subsections (1) and (2) do not apply to a person who receives the benefit

• (a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived;

• (b) as a result of a legal or moral obligation of the person from whose sexual services the benefit is derived;

• (c) in consideration for a service or good that they offer, on the same terms and conditions, to the general public; or

• (d) in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is derived, if they did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good.

[192] There are exceptions to these exceptions listed in section 286.2(5). These exceptions to the exceptions would, if operative, preclude the accused from relying on section 286.2(4) if it applied to him. Given my disposition of this matter, it is not necessary for me to consider the exceptions to the exceptions.

[193] The only one of the exceptions in section 286.2(4) that could arise in this case is the exception in paragraph (a). Considering this provision requires me to consider the meaning of the phrase “legitimate living arrangement”.

[194] These provisions are relatively new to the Criminal Code. However, the concepts have been discussed in relation to the predecessor provisions. The predecessor provisions were discussed by Arbour J.A. (as she then was) in R. v Grilo (1991) 1991 CanLII 7241 (ON CA), 2 O.R. (3d) 514. In that decision, Arbour J.A. reviewed the history of the various prostitution and vagrancy offences.

[195] Arbour J.A. went on to make the following observations about legitimate living arrangements in the context of the provisions as they then existed:

In the case of living arrangements the test obviously must be modified. In my view, the proper question is whether the accused and the prostitute had entered into a normal and legitimate living arrangement which included a sharing of expenses for their mutual benefit or whether, instead, the accused was living parasitically on the earnings of the prostitute for his own advantage. The occasional buying of a donut or a cup of coffee would hardly amount to feeding a parasite in the ordinary acceptance of that word.

Insofar as this test refers to mutual benefits, it is not to be taken to mean that each of the parties living together must make an equal contribution to the living expenses. There may not be a parasitic relationship when people contribute, for instance, in proportion to their means, unless one partner makes little or no contribution because he chooses to live as a parasite.

The parasitic aspect of the relationship contains, in my view, an element of exploitation which is essential to the concept of living on the avails of prostitution.

[196] I am of the view that the Court must consider whether there is a legitimate living arrangement between the parties. Determining this requires a consideration of a number of factors, including the length of the relationship, the way in which the parties hold themselves out to others, the location where the parties live, the duties in the relationship assumed by both parties and the contributions (both financial and non-financial) that each party makes to the relationship. It is a factual inquiry and the list of factors I have set out is not exhaustive.

[197] In this case, the factors of the length of the relationship and the way that the parties held themselves out to the world suggest that they were boyfriend and girlfriend. The complainant had met the accused’s daughter, brother and father. They both considered themselves, at least at times, to be boyfriend/girlfriend. A boyfriend/girlfriend relationship might, in some circumstances, be a “legitimate living arrangement.” However, the nature of the relationship needs to be considered in more detail.

[198] In this case, I do not view the relationship between the accused and the complainant as a “legitimate living arrangement” for three reasons. First, the accused did not make any financial contributions to the relationship after he stopped dealing drugs in May of 2016. Instead, the accused benefitted from the complainant’s work in the sex trade.

[199] Second, the accused’s non-financial contributions to the relationship after May of 2016 were very limited. The only contribution that he made was to arrange for the rental of a car and drive the complainant to some of her appointments. This does not suggest a legitimate living arrangement. It suggests a parasitic relationship.

[200] Third, the parties did not actually live anywhere permanently. Instead, they were transients who moved from hotel to hotel. This lack of permanence is a factor that suggests that the relationship was not a “legitimate living arrangement” particularly given the lack of contributions in other areas from the accused. Instead, on the facts that I have, the lack of a permanent residence is a fact that also suggests a parasitic relationship.

[201] In other words, in spite of the accused’s expressed desire to build a life together, the complainant and the accused were not building that life. Instead, the accused was behaving “parasitically” as described by Arbour J.A. in Grilo, supra. Having reached this conclusion, the exception in section 286.2(4)(a) does not apply to the accused.

[202] As a result, I find the accused guilty of receiving a material benefit pursuant to section 286.2(1) of the Criminal Code and a conviction will be entered on this charge.

Conclusion

[203] For the foregoing reasons, the following verdicts will be entered on the indictment:

Count 1 – Guilty

Count 2 – Not guilty

Count 3 – Not guilty

Count 4 – Guilty

Count 5 – Not guilty

Count 6 – Not guilty

Count 7 – Not guilty

Count 8 – Guilty

Count 9 – Guilty

Count 10 – Guilty

[204] The issue of whether the guilty verdict on count 1 should stand will await the accused’s position on whether he is bringing a constitutional challenge and, if so, the results of that challenge.

LEMAY J

Released: June 21, 2021

COURT FILE NO.: CR-19-1409

DATE: 2021 06 21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Respondent

• and -

Y.S.

Applicant

REASONS FOR JUDGMENT

LEMAY J

Released: June 21, 2021