SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 164/19

DATE: 2021November12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Deja Denique Clarke and Same Tedros Alemu

Jill Prenger, for the Crown

Katie Scott and Daniel Mulak, for the Defendants

HEARD: September 21, 22, 23, 24, 27, 28, 29, October 1, 4, 5, 6, 7, 8, 12, 13, 14, 15 and November 12, 2021

The Honourable R. J. Harper

Introduction

[1] Deja Denique Clarke (Clarke) is charged with nine counts that are detailed in the indictment.

[2] All of the counts relate to the time frame from January 4, 2018 through March 12, 2019.

[3] All of the counts alleged that certain incidents that are the subject matter of the counts occurred in the City of Brantford, Province of Ontario, over that time frame.

[4] The counts allege that Clarke did:

i. Traffick H.B., a person under the age of 18 years, contrary to s. 279.011(1) of the Criminal Code of Canada, (the Code);

ii. Traffick M.C., a person under 18 years, contrary to s. 219.011(1) of the Code.

iii. Receive a financial benefit, or a material benefit, knowing that benefit was obtained by, or derived directly or indirectly from, the commissions of an offence under subsection 279.011(1) of the Code. There are 2 counts one relating to H.B. and M.C.

iv. Knowingly advertised one or more offers for a person to provide sexual services for consideration, contrary to subsection 286.4(a) of the Code.

v. Procure H.B., a person under the age of 18 years, to offer or provide sexual services for consideration or for the purpose of facilitating an offence under subsection 286.1(2) did recruit, hold, conceal or harbour H.B. a person under the age of 18 years who then offered or provided sexual services for consideration, or, exercised control, direction or influence over the movements of H.B. contrary to s. 286.3(2) of the Code.

vi. Procure M.C. in the same manner as set out above for H.B., contrary to s. 286.3(2) of the Code.

vii. On March 11, 2018, at the City of Brantford, or in that said Region, did knowingly possess another person’s identity, namely the identity of Shanice Ebanks in circumstances giving rise to a reasonable inference that the identity of Shanice Ebanks was intended to be used to commit an indicatable offence that includes fraud, deceit or falsehood as an element of the offence, which in this case includes any of the following sections of 279.01(1), 279.011(1), 279.02 or 286.3, contrary to subsections 402 and 291 of the Code.

viii. On or about March 12, 2018, have in her possession proceeds of property, to wit: Canadian currency, obtained by or delivered directly or indirectly from the commission of an offence in Canada that is punishable by indictment including any of the following sections of 279.01(1), 279.011(1), 279.02, 286.2, 286.3, or 286.4(a), contrary to clause 354(1)(a) of the Code.

[5] Same Tedros Alemu (Alemu) is charged with one count in that, at times between the dates of March 11, 2018 and March 12, 2018, at the City of Brantford or in that Region, did for the purposes of facilitating an offence under subsection 286.1(2), hold, conceal, or harbour H.B. and/or M.C., who were under the age of 18 years, who offered or provided sexual services during this time period for consideration; or that he exercised control, direction or influence over the movements of H.B. and/or M.C. contrary to subsection 286.3(2) of the Code.

The Onus and Standard of Proof

[6] When considering each count that is charged, the accused is presumed innocent and the burden to prove their guilt beyond a reasonable doubt is always with the Crown.

[7] Proof beyond a reasonable doubt is a doubt that is based on reason and common sense that logically arises from the evidence or from the absence of evidence. A reasonable doubt is not far-fetched or frivolous; it does not involve proof to an absolute certainty or proof beyond any doubt.

[8] In this case, both accused chose not to call evidence. A trier cannot draw any inference because of that choice.

Background of the Complainants

[9] From January through March of 2018, the complainant M.C. was 14 years of age. Her date of birth is August 29, 2003. The complainant H.B. was 16 years of age. Her date of birth is April 21, 2001. At all material times, both of the complainants primarily resided in Hamilton, Ontario. M.C. resided at her mother’s home and H.B. at her mother’s home.

[10] M.C. and H.B. met each other sometime in 2017. They became close friends. H.B. stated that M.C. was the only person she could trust. M.C. described her friendship with H.B. as close. H.B. would often have sleepovers at M.C.’s home. Both of them frequently communicated over social media. Some of the apps used for communication, which were referred to by both of them, included Snapchat, Instagram, TextNow and Facebook.

[11] Although H.B. and M.C. both had cellphones during the material times in question, neither had a SIM card nor a data plan.

How the Brantford Police Services (BPS) Became Involved

[12] Between January and the end of March 2018, H.B. stated that the friends that she had included M.C., V.P., and S.S.

[13] V.P. testified at trial. I found her to be a straightforward and credible witness. She stated that on March 11, in or around midnight, she was laying in her bed at her home in Hamilton. She was watching television and was on the verge of going to sleep when she received a Snapchat message from her friend, H.B. According to V.P., the message was concerning to her.

[14] At this time, she had known H.B. for about two years. She characterized her relationship with H.B. as being one of good friends. They would hang out from time to time and often in groups with other friends. She stated that she knew H.B. was 16 years old in March of 2018.

[15] V.P. testified that the Snapchat messages she was receiving concerned for her. She said they were unusual. The messages were to the effect that H.B. needed help and she asked V.P. to call the police. H.B. told her she was in Brantford and gave her location as the Mohawk Motel in Room #10. The message went on to relate that she was in the bathroom of Room #10 and that she was with another friend, M.C.

[16] Previous to this, V.P. had met M.C. on a couple of occasions, however, she did not know much about her. The only thing that H.B. passed on to V.P. at this time was that they were in the bathroom, M.C. was 14 years old, they were both crying, and wanted the police to come get them.

[17] V.P. did not realise at that time that she could call 911 from her phone, even though she did not have a data plan. She thought she could only use Wi-Fi and apps like Snapchat. She stated that she was so concerned for H.B. that she started to message one of their mutual friends, S.S. At that time, she asked S.S. to contact the police. S.S. advised V.P. over Snapchat that she did call the Brantford Police.

The Brantford Police Investigation

[18] On or about March 12, 2018, the Brantford Police Services (BPS) received a telephone call expressing concern over two females who were at the Mohawk Motel in the City of Branford, Province of Ontario. PC Christine McCallum, of the BPS, was dispatched to the Mohawk Motel in order to investigate possible human trafficking of two females at that location.

[19] The BPS dispatch directed PC McCallum to Room10 at the Mohawk Motel where the two females were reported to be present.

[20] According to PC McCallum, she arrived at that motel alone in her police cruiser. She observed the situation for approximately half an hour. She then got out of her cruiser and approached Room #10. PC McCallum stated that the curtains of the window that was facing the front exterior of the Motel were partially opened. She went up to the opening at the window and she observed two females sitting on a couch inside of Room #10.

[21] PC McCallum stated that she lightly tapped on the window and one of the girls made a gesture of pointing her to the door of the room. PC McCallum went the door. At this time, she could see the door to the room was open and she went into the room.

[22] As soon as she went into the room, one of the girls pointed to the bed and put her finger to her mouth in what PC McCallum described as a gesture to be quiet. PC McCallum observed the bed had a large cover on it that appeared to have two bodies under it. She also observed one leg sticking out of the covers that she stated that it appeared to be Black.

[23] PC McCallum testified that from the moment she entered Room #10 she did not say anything because of the girl’s gesture to be quiet. Neither PC McCallum nor either of the girls said anything until they were all out of the hotel room and were already halfway to the parking lot, out of sight of Room #10.

[24] PC McCallum stated that she observed that both girls appeared to be scared. They told PC McCallum that they were brought to Brantford and that they had to do jobs in the room. PC McCallum stated that the girls told her that the persons who brought them to Brantford to do the jobs was a female named Deja and her boyfriend Alex. She was told that Deja booked the rooms.

[25] All the above information was told to PC McCallum while they were at the scene. The girls identified themselves as M.C. and H.B.

[26] M.C. was transported to the Brantford Police Station by PC McCallum at approximately 1:10 a.m. At that same time, H.B. was transported to the station by a different officer, PC Major.

[27] At the time that the girls were transported to the station and given what PC McCallum was told by the girls, she advised the officers still at the scene that there was probable cause to make an arrest and that they were to arrest anyone who tried to leave Room #10.

Forensic Collection of Evidence at the Mohawk Motel

Det. CST Fishback

[28] Det. Fishback was assigned to photograph the inside of Room #10 at the Mohawk Motel and collect any relevant evidence. He testified that he started photographing the motel from the outside and gradually photographed the entire room, including the bathroom.

[29] Det. Fishback also took photos of items that were left in the motel room. Once photographed, the items were taken out of the bags and catalogued, tagged, and placed in evidence bags. All of the photographs and the seizure of the tagged items were within the parameters of the warrant that was obtained by the police. After the items were photographed, tagged, and processed in evidence bags, they were brought by Det. Fishback to the Brantford Police station and placed in the property lock up.

[30] The relevant items included:

a. A large linen shopping bag containing:

i. a red backpack,

ii. a red triangular bag with a white pom-pom,

iii. a smaller purse-type bag with colored hearts on the outside,

iv. medications written for Deja Clarke,

v. a small amount of change in the winter jacket,

vi. a driver’s licence showing a picture and depicting the licence was for a Shanice Ebanks, with a Brantford, Ontario address.

vii. prepaid credit cards,

viii. two smaller leather pouches, one black and one gold in color,

ix. a marijuana cigarette,

x. an Ontario drivers licence application for a Sophia Lindsey, with an address in Brampton, Ontario,

xi. an Ontario Health Card belonging to Same T Alemu, and

xii. a note from the Toronto jail cashier indicating a property receipt of $7,273.90 for Alemu,

b. a Canada Goose winter jacket with a fur lined hood,

c. money that totalled $289.85; and

d. a white iPhone.

Identity and Continuity

[31] At the time that the girls were transported to the station, multiple officers had arrived at the Mohawk Motel. The officers were given instructions to secure the scene and to arrest anyone who came out of Room #10.

[32] There was a significant amount of time spent at the trial with respect to the issue of establishing identity and continuity. Neither identity nor continuity was admitted prior to the trial.

[33] It was not until final submissions that counsel for Clarke stated that she was not going to make any submissions relevant to either identity or continuity.

[34] Counsel for Alemu also did not spend much time on the issue of identity and continuity. He did submit that there was little evidence to demonstrate that it was Alemu in the Petro Canada store in Brantford on March 11, 2021. I will deal with that later in these reasons.

[35] I am satisfied on the totality of the evidence that the identity of both of the accused, Clarke and Alemu, was established beyond a reasonable doubt. For reasons I will elaborate on, I am satisfied that the continuity of the items seized by the BPS has also been established beyond a reasonable doubt.

[36] I will only refer to some of the material evidence in this regard.

[37] In her submissions, the Crown, Ms. Prenger, referred to multiple “connectors of identity” found in the evidence. She referred to evidence that was contained in Exhibits 5, 23 and 28:

a. Alemu’s health card that contained his picture was found among the items seized pursuant to the warrant from the Mohawk Motel.

b. Also seized was the tag that identified that Alemu had picked up a large sum of money from the property section of the Peel Police only a few days prior to Alemu being in the Mohawk Motel with Clarke.

c. The white copy paper that related to the amount given to Alemu was also found in the room Alemu and Clarke came out of on March 12.

d. From the forensic photos that were taken by Det. Fishback, a number of items were shown that were the property of Clarke, including a black Canada Goose winter jacket, a large tote bag that contained other bags, a red nap sack, a red triangular pouch, and a purse type bag with hearts on it.

e. Clarke’s cellphone had pictures of Alemu in it. There were also selfies that were taken by Clarke of herself that show some of the clothing that was seized at the motel. This included a Guess t-shirt and medication bottles in the name of Deja Clarke, as well as the red triangular bag.

f. The driver’s licence of Clarke’s sister, Shanice Ebanks, that Clarke used as identification to get the room at the Mohawk Motel, was among the items seized pursuant to the search warrant. I will expand upon this later in these reasons.

[38] I find that the officers were located in a position to observe if anyone came out of Room #10. There was no evidence that these officers were obstructed or distracted in carrying out their task. There is no evidence that any of the officers had any eyesight impairment that would impact negatively on their ability to have constant surveillance on room ten.

[39] I accept the evidence of Det. Fishback that when he arrived, after the arrest of Clarke and Alemu, Room #10 was closed, and other police officers were present to ensure that no one entered the room.

[40] When he arrived, he entered Room #10 while taking photos of the room.

[41] He testified that another officer attended and entered the room while he was doing his forensic photos and evidence collection; however, no one touched any of the evidence until he photographed it all and then sorted the items, tagged them, and processed them to be brought to the police station and placed in the evidence property room.

[42] I am satisfied that the cellphones that were collected pursuant to either warrants or consent were processed properly. I find that there was no alteration to these devices to and through the extraction process.

[43] Given what PC McCallum was told by the girls, she advised the officers at the scene that there was probable cause to make an arrest and that they were to arrest anyone who tried to leave Room #10.

[44] On or about March 12, 2018, at approximately 11:30 a.m., both the accused exited Room #10 of the Mohawk Motel. They were immediately arrested and transported to the Brantford Police station by different BPS constables in separate police cruisers.

Brief Outline of the Interview of the Alleged Victims

[45] PC McCallum testified that given the late hour there were no detectives who could be assigned to interview the girls. She was directed by the staff sergeant to conduct the interviews of both girls. She stated that she was nervous to do the interviews and added that when she looks back at it, she feels that the girls might have felt that she was not empathetic enough. PC McCallum stated that she was not confident during the interviews but that she tried her best, and if there needed to be a further interview the detectives who were going to be assigned to the case would make that determination.

[46] PC McCallum stated that at the time of her conducting the interviews she had no experience dealing with human trafficking. She was not aware of the elements of the offenses, nor how the sex trade industry worked. She has since taken training relating to the issues surrounding these offences.

[47] In addition to her lack of knowledge relating to the offences or the sex trade in general, she had no experience in interviewing females who were only 14 and 16 years of age.

M.C.’s Interview

[48] M.C.’s interview started at 1:35 a.m. and was completed by 2:45 a.m. As soon as they went into the interview room, M.C. showed PC McCallum her cellphone and she pointed out various entries on her phone that demonstrated that she had made numerous attempts to call for a taxicab in order to leave the hotel. She was not able to connect with a cab company.

[49] M.C. also stated in her interview that she had communicated with a boyfriend, D.R. D.R. sent her a text message stating: “K calling a cab”. However, no cab came to the motel. At the trial, M.C. also stated that she went to the registration area of the motel and had a brief conversation with the registration clerk though the “Ring Doorbell” located on the entrance door. During this conversation, M.C., once again sought to have a cab sent to the motel. This effort was also not successful.

[50] M.C. answered all the questions that PC McCallum posed during the interview. However, PC McCallum was not always sure of what to ask given her lack of training and lack of experience in human trafficking and the sex trade.

[51] PC McCallum stated that she asked questions during the interview as if the allegation was that M.C. and later H.B. was sexually assaulted. According to PC McCallum, both girls stated that they performed sexual acts on unknown men for money. The sexual acts included oral sex and vaginal penetration.

[52] PC McCallum was told, when she first talked to the girls upon leaving the Mohawk Motel, that there was money in the room.

[53] She never inquired as to the amount that was in the room.

[54] The alleged victims, H.B. and M.C., were taken from the Brantford Police Station to the Brantford General Hospital so that a sexual assault examination could be conducted in the early morning hours, after both girls were interviewed by PC McCallum.

Interview of the Complainant H.B.

[55] PC McCallum next interviewed 16-year-old H.B., commencing at 2:15 a.m. and ending at 3:14 a.m.

[56] According to PC McCallum, H.B. was nervous and shy. She made that determination because H.B. only gave one-word answers and did not make eye contact with her.

[57] However, H.B. confirmed that both she and M.C. engaged in sexual acts with strangers while at the Mohawk Motel that included oral sex and vaginal sex.

[58] At the end of her night shift on March 12, 2018, PC McCallum gave a briefing of her interaction relating to M.C. and H.B. to detectives. She stated that it was the detective’s task to follow up and assign other officers to any further tasks from that point forward. PC McCallum was not assigned any further tasks in this investigation.

[59] PC Bignell attended at the Brantford General Hospital while M.C. and H.B. were there. She stated that she observed both girls appeared to be pretty emotional and upset. She stated that they appeared to be hanging on the each other. She spent approximately one hour with them at the hospital that morning.

From the Arrest of Clarke and Alemu

[60] Clarke and Alemu were arrested coming out of Room #10 of the Mohawk Motel at approximately 11:30 a.m. on March 12, 2018.

[61] PC Major effected the arrest of Alemu. Incident to the arrest he located two cellphones on Alemu’s person. He took both phones and placed them on the hood of his cruiser while he placed Alemu in the cruiser and read him his rights and gave him the caution. He then placed the cellphone in the floor area of the passenger side of the cruiser. He transferred both phones to the officer in charge, Det. Allen, when he arrived at the police station. PC Major stated the cellphones were never altered in any way by him.

[62] Clarke was arrested by PC Archie, who was assisted by PC Lee. Like Alemu, she was cooperative during the arrest. She was brought to the police station and placed in custody. Clarke was also read her rights and cautioned. She wanted to speak to a lawyer and was afforded that opportunity.

[63] Det. Allen, the officer in charge, was present at the police station from 1:30 p.m. until approximately 3 p.m. on March 12, 2018.

[64] While he was at the station, Det. Allen was briefed by PC McCallum and he reviewed the transcripts of the interviews. He was aware that warrants were being sought for cellphones seized on the person of Clarke and Alemu, for the motel room, and any devices or other items seized.

[65] While at the police station, Clarke was searched by female PC Bignell. Among other things, she found cash that was wrapped into a wad and held by an elastic located in the breast pocket of Clarke’s jacket.

[66] PC Bignell counted the money. The total amounted to $8,980.00. The money was processed, tagged, and placed in the property secure area of the police station.

[67] Det. Allen did a second interview of M.C. and H.B. on or about March 20, 2018. He stated that he needed clarification with respect to certain statements made in the first interview conducted by PC McCallum.

[68] According to Det. Allen, the interview of H.B. was not very productive since H.B.’s mother was present, given H.B.’s age. The mother kept interjecting and at one point was told by Det. Allen to let H.B. speak for herself. Det. Allen gave an example of how disruptive H.B.’s mother could be. He stated that H.B.’s mother was so disruptive at the preliminary hearing that he had to remove her from the courtroom at the judge’s direction.

[69] The audio of some of the disruptions of H.B.’s mother during Det. Allen’s interview was played in at the trial. I find that the mother did impede the interview substantially.

[70] A second interview was also done of M.C. by Det. Allen. He needed clarification of some matters that were brought up in the first interview by PC McCallum.

The Cellphones of H.B., M.C., Clarke and Alemu

[71] Alemu had two cellphones on him when he was arrested upon leaving room ten. They were seized and, after a warrant was obtained, were sent to forensics for analysis. Det. Allen stated that the cellphones taken from Alemu could not be opened. They made every effort to get beyond the password protection. As of this trial, the effort is ongoing but unsuccessful.

[72] The cellphone of Clarke was able to be analysed. An extraction report of her phone was filed in evidence. Both Det. Butler and Det. Allen testified to the meaning of the entries in the report.

[73] The same was done with the cellphones taken from the alleged victims, H.B. and M.C. The complainants’ cellphones were taken from them with their consent at approximately 9 a.m. on March 12, 2018, by PC Bignell. She brought them to the Brantford police station and gave them to the officer in charge. The extraction reports with respect to these phones were also entered into evidence and Det. Allen and Det. Butler also provided evidence of the meaning of many of the entries.

[74] Det. Butler was the officer who completed the extraction reports.

[75] Some reference from the extraction reports of the various cellphones will be noted within my review of the evidence of the complainants.

Assessment of the Evidence of the Complainants, Credibility and Reliability

The Law and Analysis

[76] It was acknowledged by all counsel that at the core of this case is the evidence of the two complainants. The assessment of the credibility and the reliability of their evidence is pivotal in the determination of whether the Crown has proven its case on any of the counts beyond a reasonable doubt.

[77] My assessment of their credibility and reliability is guided by numerous cases in which judges have outlined various important tools to assist in this task.

[78] The starting point is R. v. Gagnon, 2006 SCC 17, [2006] 1 SCR 62. In that case, the Supreme Court of Canada made the following comment at para. 20:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

[79] The complexity of the analysis of credibility and reliability of a witness is acknowledged. I will set out some of the more significant tools that I am using to assist me in assessing the credibility and reliability of M.C. and H.B..

[80] There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. A trier of fact may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence: see R. v. D.R., 1996 207 (SCC), [1996] 2 S.C.R. 291, at para. 93.

[81] My analysis of the credibility (the truthfulness of a witness) and the reliability (the accuracy of the evidence) of M.C. and H.B. includes the considerations that are set out by Leroy J. while sitting in appeal in the case of R. v. Henry, 2020 ONSC 7276. Leroy J. stated at paras. 32-35:

Demeanor

[32] Before relying on demeanor, trial fact finders should think critically about how and why they are struck by the performance of a witness and should be humble in their ability to draw appropriate significance from how testimony is presented.

[33] Demeanour alone should not suffice to find a conviction where there are significant inconsistencies and conflicting evidence on the record.

Evidentiary Content and Credibility

[35] As noted, the more dependable way to evaluate credibility is to heed the testimony offered rather than the source or manner of presentation. This will involve consideration of:

• The plausibility of the evidence.

• Supporting or Contradictory Evidence – independent supporting evidence.

• External consistency – this includes not only consideration of how similar or different the testimony in question is to other independent testimony but includes how well it fits with what is known about time, place and circumstance.

• Internal consistency – where there is an internal inconsistency about a key fact, the fact-finder will be unable to accept the witness’s testimony about this fact unless there is a rational basis for preferring the in-court testimony over the prior inconsistent account. In a judge alone trial, if internal inconsistencies are material or frequent enough, it can be legal error to rely on that witness unless the trial judge articulates a reasoned basis for doing so despite those difficulties – note H.D. above.

• The balance of the evidence – Balance exists when a witness shies away from apparent exaggeration or evidence minimization; admits unflattering or personally difficult facts. A balanced witness answers the questions asked and does not attempt to answer strategically.

[82] My analysis will consider:

a. identification of any material inconsistencies, internally and externally;

b. whether there is evidence of inconsistencies on material issues as compared to previous statements, preliminary hearing transcripts, and interviews given to the police;

c. whether there is evidence of inconsistencies or confirmation of their evidence by other witness and or other objective evidence presented at the trial;

d. observation of the witness as a whole, not only by considering the demeanor of the witness during trial but also attempting to understand, where you have evidence to assist you in this regard, impediments that may be present to giving a full accounting of any particular incident or event; and

e. this analysis will be made clearer when considering the evidence of M.C.; therefore the most important thing that I must be guided by is whether or not, after considering all of the evidence, including any limitations that may exist of a particular witness, there was a reasonable doubt raised relative to each count in the indictment.

[83] The demeanor of a witness can never be used as the sole criteria for assessing credibility. Nevertheless, taken together with a consideration of all the evidence, it is still an important factor.

[84] I also adopt the comments and approach of Bell J. in R. v. K.G.A., 2019 ONSC 275, commencing at para. 45:

[45] My assessment of the credibility and reliability of the testimony of the witnesses takes into account that many individuals called upon to give evidence at a criminal trial are not familiar with the process, may never have experienced a courtroom setting, and are required to rely upon their memory of events that transpired a number of years earlier.

[48] I am mindful of inconsistencies and contradictions in a witness’ testimony. While consistency is an element of truthful testimony, I do not expect perfection in a witness’ testimony. Minor inconsistencies are an element of truthful testimony. Significant inconsistencies or contradictions, however, are treated much differently and can, in some circumstances, result in a witness’ testimony being rejected in whole or in part.

[49] In this matter, I am not required to consider competing versions of the events giving rise to the charges against K.G.A. and A.S.A. I have heard only from Crown witnesses. The question is whether, on the basis of the evidence which I accept, I am convinced beyond a reasonable doubt of the guilt of the accused of the offences with which they are charged.

Assessment of M.C. and H.B.’s Credibility and Reliability

[85] In assessing the credibility and reliability of the testimony of M.C. and H.B., I am taking into consideration that all witnesses are giving evidence in a courtroom setting. The fact that they were testifying remotely does not take away from the fact that a virtual courtroom is still a courtroom.

[86] This is a setting that is out of the ordinary for most people. This is especially so when the person giving evidence is 18 years old at the time of trial, relating events that took place approximately three years and eight months earlier. The fact that the witness may have testified previously at preliminary hearings does not diminish this consideration materially.

[87] Both H.B. and M.C.’s testimony was seriously impacted by the events that they experienced as young teenagers. They had difficulty relating events that they clearly did not want to remember.

[88] H.B. was emotional during her testimony. When she was given certain tools to assist in refreshing her memory, she responded that, “I tried to forget about this and now it is all coming back to me … I don’t like this feeling that I have … it’s on everything.”

[89] M.C. was even more emotional. Her anger was palpable. It was obvious that she did not want to testify. She had to be reminded multiple times that she had to testify and that she needed to make every effort to remain as calm as possible in order to relate facts to the court instead of lashing out.

[90] I find that M.C.’s emotions did have a considerable impact on her ability to give her evidence. To understand the impact, I will relate some of the more salient moments of her testimony.

[91] At the outset of her testimony, she was very dismissive of the questions being asked by the Crown. She often replied that she did not remember. On the first day of her testimony, she had only been giving her evidence for a little less than one hour when her testimony ended for the day. At the end of that first day of her evidence she was asked by the Crown attorney how she was feeling. She responded, “I’m stressed … all this is stressing me out. How do I feel about being here and talking about it? I don’t want to be here.”

[92] After the long weekend in October, M.C. was back given her evidence in chief. She stated that, “I feel used and degraded, like I’m a piece of trash…that sums it up. Who is tied to those things? [Clarke].”

[93] Her anger at Clarke continued and is demonstrated in the following interchange in M.C.’ testimony:

She used me so she could make money.

How old were you… 14. Now I am 18.

When you were 14 what did you understand?

How do I feel about talking about this… I hate it!

[94] Shortly after that angry outburst, M.C. once again lashed out at Clarke:

Why did you think I am having sex with old men and I am giving all back to you and she just sits there? I don’t remember how I felt. I don’t remember why I gave the money.

[95] M.C. testified that when she was 14 years old, she thought she was older than what she was. She stated that she was hanging out with older people and life was bad then. She also stated that she thought she could trust people, but she did not trust anyone.

[96] Later in her evidence, on the second day of her testimony, she related that she finds it hard to explain things. She stated, “[i]t is tough to explain to a whole courtroom and it is sad to tell the whole court and people I don’t want to talk to.”

[97] M.C.’s anger did not subside as the testimony continued. She forcefully directed further lashing out comments at Clarke. She stated, “[h]ow [Clarke] made me have sex with old men… is that not a good answer.”

[98] During cross examination, M.C.’s anger intensified. On multiple occasions she answered a question with a question back to counsel or lashed out, a number of times at Clarke. I find that M.C. often only half-listened to the questions and became angrier when counsel made suggestions to her that she did not agree with.

[99] The following are some of the major examples of her anger in those circumstances.

[100] When it was suggested to her that she did not have a problem having sex with the clients in January of 2018 she responded: “that’s a bit funny”.

[101] It was further suggested to her that no one took advantage of her and that she wanted to be in the sex trade, to which she responded: “ask your client”. She then followed that comment with: “you’re wrong I don’t agree”.

[102] M.C. stated in cross examination: “I did not want to have sex with strangers. I did not want to be controlled and manipulated by your client.”

[103] M.C. admitted to counsel in cross examination that she was drawn to the money but not drawn to being controlled.

[104] When M.C. was asked questions about her knowledge of her friend H.B. being in the sex trade and having a pimp, she angrily stated that she was not here to talk about H.B.: “It’s none of my business”.

[105] At one point, M.C. stated that her friend H.B. was in the sex trade and that she had a pimp. Later in cross examination she stated that she did not know if she had a pimp. In re-examination, she stated that she had only heard from others that she was in the sex trade and had a pimp. H.B. had denied that she ever worked in the sex trade prior to meeting Clarke at the end of January 2018.

[106] In cross examination, it was suggested to M.C. that she came to Brantford in January 2018 to do sex work. M.C. angrily responded, “you just told me I came to Brantford to party.”

[107] M.C. was combative with counsel. That anger and combativeness had an impact on her testimony. At times, it was difficult for M.C. to stay focused on providing factual evidence to the court. Immediately after she gave that curt response to counsel for Clarke, she added that she went to Brantford to party and not to get into the sex trade.

[108] Counsel for Clarke suggested to M.C. that during the stay in Brantford, on the first occasion (Time Period #1) she was there with her friend H.B., and that they were only in Brantford on this occasion for a period of three days. M.C. responded that she did not remember the number of days they were there.

[109] Counsel for Clarke repeated that suggestion that they were in Brantford during Time Period #1 for only three days multiple times during her questioning. On numerous occasions M.C. responded that she did not remember the days. When asked by counsel for Clarke if there was any reason to doubt that they were there for three days, M.C. stated, “I told you I don’t remember the days”.

[110] Upon reviewing all the evidence, I find that M.C. and H.B. went to Brantford for the Time Period #1 of January/February 2018 on January 29, 2018. That is based on the CIU Open Source Intelligence Report reviewed by Det Laing in her testimony and to testimony of H.B. and M.C.

[111] The Report depicts ads placed on Back Page on January 29, 2018 with the title Passionate Babe. I accept the evidence of H.B. that she saw Clarke posting ads on Backpage with the title Passionate Babe shortly after they had arrived at the Days Inn in Brantford for Time Period #1. Although M.C. did not see the postings, she saw Clarke texting and shortly thereafter clients showed up at the hotel.

[112] I find that they left Brantford to go back to Hamilton on February 2, 2018. This is based on the testimony they gave responding to when the police came to the Comfort Inn to talk to them when the staff were concerned about young girls in one of their rooms.

[113] I find as a fact that Time Period #1 in which H.B. and M.C. were in Brantford relative to the alleged incidents was for five days. I find that the frequent suggestions by counsel in cross examination both confused and angered M.C. this contributed to M.C.s lack of factual responses the many of the questions.

[114] There were other examples of M.C.’s anger and dismissive behaviour during her testimony. However, her anger piqued at the end of the morning during her cross examination on October 14, 2021. M.C. angrily stated that she was being interrogated and that she was not going to answer any more questions that she did not feel like answering.

[115] I reminded her that she had to answer questions that I felt were relevant. She looked away from the camera on the virtual feed to the court and I told her to look at me when I was talking to her. She started to raise her voice and I told her she must remain calm and listen. She told me not to talk to her that way.

[116] I took a recess and when court resumed, I reminded her that I had told her on multiple occasions that she needed to listen to the question and to respond with factual evidence. Lashing out and answering questions with questions was not appropriate. I told her that I understood that she was angry but that I needed to get all the important and relevant evidence. I told her that I did not want to have to deal with contempt in cases like this, however, I needed to conduct the hearing in a fair and dignified manner. I gave her a caution to answer the questions with facts.

[117] From that point on M.C.’s testimony remained just under the boiling point of anger.

[118] I find that H.B., on an overall assessment of her testimony, made a sincere effort to give her evidence in a thoughtful manner and one that was as accurate as possible. She repeated on multiple occasions during her evidence that she could not answer something if she felt it was just a guess or it would be a lie.

[119] Both counsel for Clarke and Alemu submitted that H.B. and M.C. were not truthful.

[120] Counsel for Clarke submitted that H.B. was consistently untruthful in her testimony. I agree that H.B. was inconsistent in some of her evidence. However, any inconsistencies must be assessed in the context of the questions that were asked and in relation to the materiality of any inconsistent statement.

The alleged inconsistencies by topic

[121] Both counsel for the accused submitted that H.B. was inconsistent relative to the following topics:

a. The number of days the complainants were in Brantford in the period from the end of January until the beginning of February.

b. The number of “sex for money” incidents the complainants were involved in during both periods of time that they were in Brantford relative to the allegations in the counts charged.

c. Whether there was a discussion about the ages of H.B. and M.C. in the presence of Clarke.

The time spent in Brantford from the end of January 2018 until the beginning of February 2018

[122] I have already dealt with the issue of the time frame during the period of January and February 2018. There is no question that the second time frame was from March 11, 2018 to March 12, 2018

The number of times the complainants were involved with sex for money over the relevant time periods

[123] I do not agree that there is any inconsistency with respect to this evidence. I find that both H.B. and M.C. had difficulty recalling certain details. This was a function of both their attempt to purposely forget what they had experienced, the length of time that had passed from the incidents, and their ages at that time.

[124] Both H.B. and M.C. were negatively impacted by their experience. H.B. stated that she was “grossed out” by her actions and she tried to forget them. M.C. stated that she did not want to talk about what had happened and that she hated having to tell a whole courtroom what took place. She felt degraded by the events that took place.

[125] However, H.B. was challenged in cross examination about the number of times she performed sex for money. She stated that she could not recall. She agreed that she in her previous statements to the police she said 15 times during the first time period. However, she stated at trial that was just a guess. She added that it was probably more times.

[126] Given all the circumstances, I do not feel their testimony was inconsistent in any material way. Although there was some confusion with respect to the details, it is understandable given their feeling of being grossed out and degraded, the estimates they gave in their evidence were just that, estimates. I take no negative inference with respect to this issue.

[127] The same analysis applies with resect to the evidence of the amount of money that was made by them during either time period.

The discussion of age of the complainants

[128] H.B. testified that as a close friend of M.C. she knew that she was only 14 when they were in Brantford during the first time period in 2018. She stated that when she first met Clarke during the first time period, Clarke was asking questions as if they were just introductory questions like their names and how old they were. H.B. stated that she was fine with telling Clarke the truth and said that she was 16 years old. H.B. stated that M.C. told Clarke that she was the same age as H.B., and H.B. stated that she wondered why M.C. would lie about her age.

[129] H.B. stated that she did not feel it was her place to tell Clarke about M.C.’s real age. However, she did tell M.C. not to lie about her age or she could get into trouble. According to H.B., M.C. just nodded as if she did not care.

[130] In her direct examination, H.B., at first, stated that as time went on M.C.’s age did not come up. However, in however, she was shown the transcripts of her preliminary hearing testimony to refresh her memory. She noted that she now recalled a further discussion regarding M.C.’s age.

[131] She stated that she had originally told Clarke that she was 17 and M.C. told her she was 16. She stated that M.C. told her that they needed to tell Clarke that they were older. However, H.B. went on to state that later during their stay in Brantford, Clarke questioned M.C. about her age once again. This discussion took place in front of H.B. H.B. stated that Clarke told M.C. that she knew she was under 16. H.B. also testified that she confirmed to Clarke that M.C. was only 14.

[132] H.B. stated that M.C. was upset with her for telling Clarke. However, nothing changed after this discussion. Clarke continued to make arrangements for both M.C. and H.B. to perform sexual services for money.

[133] M.C. testified that there was no discussion about age with Clarke. I accept H.B.’s testimony in this regard. Once again, although M.C. was dismissive in answering this question, her lashing out and angry responses clearly demonstrated that Clarke knew she was only 14. The most poignant heated answer by M.C. was that she was using M.C.’s 14-year-old body by making her have sex with old men in order for Clarke to be able to buy a house.

[134] Even if I did not accept H.B.’s testimony with respect to Clarke’s knowledge of the ages of H.B. and M.C., the issue of knowledge of age is treated differently as it relates to some of the counts charged. I accept the comments of Henschel J. in the case of R. v. Crosdale, 2018 ONCJ 800, with respect to the consideration of age within subsection 290.01 of the Code. The accused’s knowledge of a complainant being under or over the age of 18 years is an essential element of the offence set out in subsection 279.011 of the Code.

[135] It was also pointed out in that case that the treatment of the knowledge by the accused of the age of the complainant is different with respect to a charge pursuant to subsection 286.3(2) of the Code. Clarke is charged with two counts relating to that subsection.

[136] In Crosdale, the court was dealing with the issue of the accused’s knowledge of the complainant’s age as an essential element of:

• count 1, trafficking of a person under the age of 18 years contrary to s. 279.011 of the Criminal Code;

• count 2, procuring a person under the age of 18 years, contrary to section 286.3 of the Criminal Code.

[137] Henschel J. stated at para. 116:

[116] There is also a requirement that “all reasonable step be taken” to ascertain age that applies to the offence of procuring a person under 18 years contrary to s. 286.3(2) of the Criminal Code. Section 150.1(5) provides that:

150.1(5) It is not a defence to a charge under …subsection 286.3(2) that the accused believed that the complainant was eighteen years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.

[138] I find as a fact that Clarke was aware that both H.B. and M.C. were under the age of 18 at all material times. Even when H.B. and M.C were not truthful with respect to them being 14 and 16 when Clarke asked about their age, I accept H.B.’s testimony that she told her she was 17 and M.C. told her she was 16. I also accept H.B.s testimony that there was a subsequent discussion with Clarke wherein Clarke learned that M.C. was 14.

[139] I find that there is no evidence that Alemu made any efforts to ascertain the age of either H.B. of M.C. Both complainants stated that he did not say much of anything to them. He was nice, but he had little conversation with them.

[140] Counsel for the accused submitted that there were other inconsistencies in the evidence of H.B. and M.C. that should cast doubt on all of their evidence. I do not agree. My further analysis is set out below in my consideration of what I find to be the consistent evidence of H.B. and M.C.

[141] Counsel for Clarke submitted that H.B. and M.C. did not corroborate each other in their evidence. I do not agree. I will outline the incidents related by both of them relative to the two relevant time periods. My analysis will consider any material consistencies, or lack thereof, relative to the material evidence. At the same time, I will consider any additional corroborating evidence or lack thereof. I will refer to two time periods that are the relevant periods.

Time Period #1: The Days Inn/Comfort Inn, Brantford, January and February 2018.

[142] Both M.C. and H.B. gave evidence that it was M.C. who contacted H.B. to invite her to come with her to Brantford when she was invited by Clarke at the end of January 2018. Both complainants were consistent in their testimony that the intention was to go to Brantford to “hang out”. M.C. did not want to go alone and H.B. was going along because her friend asked her to go with her.

[143] M.C. told H.B. that they were going to hang out with a friend of hers. H.B. had not met this friend prior to this invitation.

[144] M.C. and H.B. testified that they were brought to Brantford, on this occasion, by a friend of M.C.

[145] M.C. and H.B. were dropped off by M.C.’s friend at the Days Inn, Brantford Ontario. They entered the lobby and met M.C.’s friend, Clarke, who was introduced to H.B. as Deja. However, she was also often referred to as “GeeGee”.

[146] Clarke brought M.C. and H.B. to a room at the Days Inn where Clarke was staying with another female who was introduced as Ebony.

[147] All four of the females in this room hung out and chatted for about one hour.

[148] H.B. testified that after about one hour, Clarke started talking about the sex trade. Clarke stated that a lot of money could be made by doing sexual acts for money. H.B. stated that she was not comfortable with this discussion; however, M.C. assured her that it was okay to do this. M.C. also stated that she had done this before. According to H.B., that was the first time that she learned that M.C. had been involved in the sex trade.

[149] H.B. stated that she trusted her friend and liked that idea of making money. That way she could get the things that she wanted without having to ask her mother. Her mother was her only source of income. At that time, she was in school and she did not have a job.

[150] During her testimony relative to Time Period #1, M.C. was extremely angry. When asked how the sex trade activity was initiated, she stated that in Time Period #1, “I had sex with men for money… I think that is pretty specific.”

[151] She then directed her angry comments at Clarke: “[Clarke] just sitting there… How is this fair… I'm being interrogated and she is sitting there quiet.”

[152] In answer to the question of how did the men come to the hotel to have sex? M.C. stated:

They were having sex with me at 14… thank you [Clarke] I hope you are enjoying your time! ... I am angry and I am trying to make it a bit obvious … sex at 14 and now I am sitting here talking to yes its really tough … next question.

[153] When asked, once again, how the men knew to come to the hotel, she stated that Clarke was texting them when they contacted Back Page.

[154] M.C. stated that she only saw Clarke texting the men during Time Period #1. However, she did see Clarke posting the ads on Back Page during the Time Period #2 in March 2021.

[155] M.C. also stated that Clarke knew she could take advantage of her because she was 14.

[156] I find that H.B.’s testimony was substantially consistent with M.C.’s testimony on the material elements of the offences charged during Time Period #1. H.B. was more detailed about her discussions relating to the sex trade activities. This is partially due to the fact that she was emotional during her testimony; however, she was less consumed with the anger that was exhibited by M.C. during her testimony.

[157] H.B. gave evidence relating to how the sex trade activity got started on this first occasion. She stated that “[Clarke] talked about posting an ad for people to come and we would service them and then get paid.” She understood “service” meant sexual activity. She also stated that she thought Clarke said that the money would be split on a 50-50 basis.

[158] H.B. stated that Clarke told them that she would post ads for “Johns” to come for sex for money. According to H.B., Clarke showed her pictures on her phone of women, some of which were partially naked, and some shown in suggestive lingerie. None of the pictures were of her. That was okay with her since she did not want to be recognized by anyone.

[159] According to H.B., Clarke then used a prepaid credit card to purchase the ads. She recognized the cards as she had used such cards before.

[160] H.B. stated that Clarke told them that she would be named Alexis in the ads and M.C. would be named Olivia. M.C. confirmed that she thought she was named Olivia in the ads.

[161] H.B. stated that Clarke went on Back Page, purchased the ads, and published the photos. She could see that Clarke was on Back Page as the cellphone she was using was in close range of her.

[162] H.B. gave detailed account of her sitting on one of the beds in the hotel room while Clarke was sitting on the dresser beside the television. The phone that Clarke was using was tilted on an angle and she could see the phone.

[163] H.B. stated that she saw the title that Clarke entered in the ad post and it read: “Passionate Babe”. H.B. stated that she only saw the title and not any of the other words that Clarke wrote for the ads. I find that this is an example of H.B.’s effort to give accurate testimony that was not embellished. She only stated what she saw on this occasion.

[164] H.B. also stated what while all of this was going on, M.C. was just “doing her own thing”.

[165] Although H.B.’s testimony was more detailed with respect to Clarke placing the ads on Back Page, they were both consistent with respect to Clarke either placing the ads or texting the “Johns.”

[166] M.C. stated that men showed up to the hotel room after Clarke was texting and that they came for sexual services.

[167] H.B. stated that Clarke told them, before her first client came, that they were to get the money first and put it in the top bedside table drawer.

[168] She also stated that Clarke gave all the directions as to what sexual services would be done and the cost of the services. The sexual services ranged from oral sex to vaginal penetration with a condom, and if the client wanted sex without a condom that would cost $100.00 more.

[169] When the first client came to the hotel, H.B. stated that she was scared. She took his $100.00 and placed it in the drawer as she was instructed to do and then she performed oral sex on the man. When the client arrived at the hotel, the others in the room went into the bathroom until she was finished and then they came out of the bathroom when she said she was done.

[170] H.B. stated a condom was used with her first client and that Clarke supplied the condoms. After she had completed her first sex act with that first client, she stated that she was “grossed out with herself.”

[171] H.B. stated that she had two or three clients that night. She did not recall how long they stayed in Brantford. She told the Crown in direct examination that it was four or five days. She stated on multiple occasions in her direct exam that it was about four or five days, but she could not remember exactly.

[172] She also could not remember how many clients that she had over the whole time period. She stated that she was guessing when she told the police that she had maybe 15 clients over this time period.

[173] M.C. also had difficulty remembering the number of clients she engaged with. She also had difficulty recalling the number of days they were in Brantford during this first period of time in January and February 2018.

[174] What is consistent with both complainants is that Clarke is the one who did all of the arrangements to get the clients for sexual services for money.

[175] Both complainants stated that Clarke did not participate in the sexual activity.

[176] Both complainants stated that Clarke took the money that was earned by them for performing the sexual services.

[177] I find that the complainants were consistent with respect to the material evidence that relates to the charges before this court as it relates to Time Period #1.

Corroborative evidence of the CIU Traffick Jam Search/Clarkes phone Extraction Evidence

[178] Det. Laing of the BPS testified at trial. She stated that in March 2018 she was working in the Criminal Investigation Unit of the BPS. She had received some training in the use of certain tools that were being used by police services. One of the tools she was trained on was the use of a tool called Traffick Jam (TJ) computer software application.

[179] The officer in charge of this case contacted her to see if she could search the TJ program to assist in his investigation in this case. Det. Allen gave her a couple of phone numbers and the names of Olivia and Alexis. He also asked for a date range for the search of between March 9, 2018 and March 12, 2018.

[180] The TJ program searched for any ads, whether they were escort or interaction ads, placed on the internet. If an ad is located given the parameters, the program then captures the data from the ads that are open-source and readily available to anyone.

[181] This program only searches for public sites, not private or members-only sites.

[182] Det. Laing stated that when she did the search with just the two phone numbers, the search did not yield any results.

[183] She added the name Olivia to her search, along with the extra filters of Canada/Ontario/Brantford. In addition, Det. Laing added other information from the Post IDs that were revealed and that yielded ads that were posted on Back Page on January 29, 2018, January 30, 2018, February 1, 2018 and March 11, 2018.

[184] All the above ads contain the title: “Passionate Babe” and offers the sexual services of “Olivia”. All the above ads refer to the location as Brantford/Woodstock.

[185] Taken by itself, the TJ search does not prove anything. However, taken with the evidence of both H.B. and M.C., it is an additional piece of evidence that goes to corroborating the complainants’ testimony relative to the ads that they say were posted by Clarke, one of the names used, the title H.B. said that she saw, and the location of the sexual services.

[186] A further corroborating piece of evidence in this regard is the Extraction Report of Clarke’s phone. Shown on the “Data Files” section of that report on lines 1, 2 and 3. Located in those sections of the Extraction Report are thumbnail images of partially naked women. The name shown on the pictures is “Olivia”. The Report also notes that these images on Clarke’s phone were created on January 29, 2018 at different times throughout that day. Three of the images on the phone were the same images posted on the Back-Page ad shown in the CIU Traffick Jam Report advertising sexual services in the Brantford/Woodstock area.

[187] I find that these documents are corroborative of the evidence of M.C. and H.B. relative to Clarke posting ads on Back Page for sexual services to be performed by M.C., who was given the name of “Olivia” by Clarke.

[188] In addition to the above, the Extraction Report of Clarke’s phone that shows the entries under SMS messages shows two entries that appear approximately at midnight March 11/12, 2018. The messages are directs the recipient to tap the link sent by “Back Page to manage your ad”. I find that the only logical conclusion is that Clarke had already placed ads that she was given the link to manage.

[189] Furthermore, the POST ID that is shown is the same Post ID that is shown on Det. Lang’s Traffick Jam search showing the ads posted on Back Page referred to above in paragraph 190.

[190] Both M.C. and H.B. did not recall the specifics of what hotel they were at during the five days they were in Brantford from January 29 through Feb 2, 2018. As her testimony progressed through her direct evidence and into her cross examination, she recalled that there were two hotels over that time period; one was the Days Inn and the other was the Comfort Inn.

[191] Given that the police attended to investigate the complainant’s safety after being called to the Comfort Inn on February 2, 2018, I conclude that this was the hotel that they ended up being at during that time period. I accept H.B.’s testimony that they met Clarke at the Days Inn at the start of this period on January 29, 2018.

[192] I do not feel that this confusion and lack of recall in this regard impacts my findings of credibility and reliability of the evidence pf H.B. and M.C. on the material issues related to the offences. As I alluded to earlier, M.C. had little recall with respect to which hotels they were staying at. After thinking about it, she did recall that they were at three hotels over the two time periods and they were the Comfort Inn, the Days Inn, and the Mohawk Motel.

[193] H.B. gave evidence that she was scared when she would go on an outcall. She stated that her performing sexual acts with strangers in a strange house was scary. On one occasion she was frightened by one of the clients, and she left and found a person to drive her. She stated that she told the person about her working in the sex trade and the person told her he hoped she got out of it. However, she wanted to go back to the hotel as she did not want to leave her friend.

[194] I do not agree with counsel for the accused’s submission that this was yet another example to demonstrate that both complainants could have left at any time and they did not because they were working for themselves. I deal with this in my analysis of the evidence relating to the control each of the complainants felt that Clarke had over them.

[195] Time Period #1 ended when M.C. and H.B. were able to get two friends they knew to come to Brantford to pick them up to take them home.

[196] On or about February 2, 2018, M.C. and H.B. were picked up by their friends. Clarke was not present at the hotel when they were in the process of leaving. However, Clarke was informed by her friend Ebony that M.C. and H.B. were leaving.

[197] Clarke followed M.C. and H.B. in her own vehicle. While the M.C. and H.B. vehicle was stopped, Clarke approached the vehicle.

[198] H.B. testified that Clarke approached her vehicle in a rage. According to H.B., Clarke grabbed her hair and started to pull her hair in a manner that was attempting to pull her out of the car. H.B. stated that Clarke was yelling that she took her money and she wanted it back.

[199] Although H.B. did not mention that Clarke was demanding that H.B. give her ring back, H.B. admitted in cross examination that she also demanded her ring back and H.B. gave it to her. Once that the ring was given back by H.B., Clarke and those with her left.

[200] M.C. was consistent with the evidence of H.B. that Clarke did approach their vehicle as they were attempting to go back to Hamilton. M.C. described Clarke as: “acting crazy”. She did not recall hair pulling, but she did state that Clarke was yelling at H.B. M.C. also stated that once the ring was given back, everything subsided, and Clarke left.

[201] H.B. testified that when M.C. had a client, the same routine always took place. She and Clarke would go into the bathroom until M.C. was finished. M.C. testified to the same routine.

[202] They both testified that they also did “outcalls” where men would pick them up at the hotels and drive them to their home where they would perform sexual acts for money. Neither could recall the exact number of outcalls. I do not find it material in the circumstances of this case that either H.B. or M.C. may have given differing estimates of the numbers of outcalls.

[203] Both H.B. and M.C. were consistent in describing that the outcalls were scary, but they did them anyway.

[204] Both H.B. and M.C. testified that they feared Clarke.

[205] H.B. stated that Clarke aggressively told her that she had to perform the sexual acts and put the money in a drawer where she would collect it later.

[206] H.B. stated that she had to follow Clarke’s directions because: “She was the boss of me”.

[207] M.C. stated that she felt manipulated and controlled by Clarke. She was only 14 and Clarke was in or around 20 years of age. M.C. stated that she may have wanted money, but she didn’t want to be controlled and manipulated.

[208] M.C. corroborated H.B.’s testimony to a substantial degree with respect to the incident in the car when they were attempting to leave Brantford on February 2, 2018. H.B. stated that Clarke attacked her, pulled her hair and tried to drag her out of the car while yelling at her that she stole money from her and that she wanted it back. H.B. later admitted that Clarke also yelled at her to give her ring back and was trying to pull it off her finger.

[209] M.C. stated that Clarke did approach their car and was “acting crazy” she was trying to get her ring off H.B.’s finger. Once that was done things subsided. She did not recall that Clarke was pulling her hair and yelling that she owed her money. However, M.C. did recall that on March 11, 2018 Clarke told H.B. in the car on the way to Brantford that she would going to pay back all the money that she owed.

[210] Both M.C. and H.B. testified that Clarke would take the money that they received for sexual services and that Clarke never performed any of the sexual services. Both complainants testified that when they returned to Hamilton on February 2, 2018, neither of them had any money. They stated that Clarke took all the money they earned from performing sex acts.

[211] Both H.B. and Clarke testified that when Clarke would leave, she would tell them not to leave and that she would return. She did not give any indication of when she would return.

Time Period #2

[212] On March 11, 2018, Clarke contacted M.C. and invited her to come to Brantford to see her new home and hang out. M.C. didn’t want to go alone, so she invited H.B. to come along.

[213] H.B. stated that when she got the invitation, she wanted to be there for her friend and did not want her to go alone. She also thought that there should not be a problem as they were only going to see Clarke’s new home.

[214] H.B. stated that even though Clarke had attacked her in the car on February 2, 2018, and took all of her money from the sex acts during Time Period #1, she felt that she had to go for her friend, M.C.

[215] M.C. testified that Clarke’s message to her indicated that she would be picked up in Hamilton around 1:30 p.m. on March 11, 2018. M.C. stated that she messaged Clarke and told her that she had invited H.B.

[216] Clarke did not show up to pick up M.C. until approximately 5:30 p.m. on March 11, 2018. They then proceeded to drive over to pick up H.B. at her home in Hamilton.

[217] Clarke arrived in a White Honda. It was driven by a Shane Redfearn. Clarke was in the back seat with someone that was introduced as “Alex”. Redfearn was in the front as driver and M.C. was in the front passenger seat.

[218] H.B. got into the back seat with Clarke and Alex. According to H.B., Clarke immediately said to her that she had to give her ten reasons why she shouldn’t knock her out right then. She then aggressively told her that she had to earn and pay back all of the money she owed her.

[219] M.C. testified that she did hear Clarke tell H.B. that she had to pay back all of the money she owed her. M.C. thought that was referring to money obtained from Time Period #1.

[220] The car made two stops on the way to Brantford. One stop was made at a bar. Redfearn and Alex went in and it appeared that they got some number of drugs. M.C. stated they consisted of white powder in plastic baggies.

[221] Both M.C. and H.B. stated that it was apparent the Alex and Redfearn had a connection with each other.

[222] The second stop was at a Petro Canada station that had a convenience store attached to it.

[223] That is where Alemu got out, went into the store and obtained prepaid credit cards.

[224] Finally, the car drove them to the Comfort Inn on King George Road in Brantford, Ontario. Alemu and Clarke went into the hotel lobby. The surveillance video from the hotel lobby was played in court.

[225] H.B. gave details of who was in the video and what she recalled happened. H.B. and M.C. stayed in the Honda with Redfearn for about ten minutes. Redfearn then told them that he had to go and see his children in Kitchener and therefore he had to leave.

[226] M.C. and H.B. then went into the hotel and Redfearn left.

[227] The video showed that initially, Alemu and Clarke were in the hotel registration area. Daniella Gonzalez, the registration clerk on duty that evening, testified at the trial. She stated that a man and a woman entered the registration area at approximately in or about the time between 5:30 and 6:30 p.m. on March 11, 2018. They were attempting to rent a room. Gonzalez told them that they could not rent a room unless they had photo ID and a credit card. The couple wanted to pay with a debit card. She informed them that they were not allowed. Approximately ten minutes after the couple entered and attempted to rent the room, Gonzalez stated that two very young females entered the registration area and the male asked them why they left the car and why they came into the hotel.

[228] H.B. testified that it was Alemu who was the male in the video and Clarke was the female beside the male. She also identified herself and where she was, and also M.C. and where she was.

[229] Clarke was upset that she had left things in Redfearn’s car; most importantly she left her cell phone. However, Gonzalez testified that she was most upset that she could not get a room at the hotel.

[230] Alemu asked for assistance in getting another hotel. Gonzalez tried to help with that by making a call and handing the phone to Alemu.

[231] Clarke, Alemu, M.C. and H.B. all left the Comfort Inn together.

[232] According to both M.C. and H.B., they all got into a cab. It was in the cab that it was decided to try and get to a motel. It was more likely that a motel would accept cash.

[233] H.B. testified that they went to the Mohawk Motel in Brantford.

[234] Both H.B. and M.C. testified that Clarke paid for the cab and Alemu gave her the cash to pay for the room. M.C. stated that Alemu did this right in front of her and she counted that Alemu gave Clarke $140.00

[235] Clarke went into the hotel lobby to get a room.

[236] The registration clerk, April White, testified at the trial. She registered Clarke and took the money. She described the registration process. She stated that a black female who was of average weight and slim with long hair came in and stated that she wanted to rent a room.

[237] Ms. White stated that she filled out the registration form with information that the female provided.

[238] The female provided a driver’s licence as identification. The licence was in the name of Shanice Ebanks. The registration form was entered as an exhibit at the trial. It was signed with the name Shanice Ebanks, showing a Brantford street as a residence. It also showed that cash was paid in the amount of $85.00 for the night and also a $75.00 security deposit.

[239] Det. Graham testified that he had met Clarke prior to his involvement in this investigation after March 12, 2018. He stated that he was investigating a stabling incident and was at the Brantford General Hospital. The person who was stabbed was Clarke. Det. Graham stated that Clarke was not cooperative in the investigation.

[240] While he was at the Brantford General Hospital on this occasion, he also met her sister, Shanice Ebanks. Her sister was worried about her.

[241] A further investigation with respect to the driver’s licence in the name of Shanice Ebanks used to rent room 10 at the Mohawk Motel revealed the date of birth of Shanice Ebanks. It is shown as part of the number on the licence. Detective Graham learned the date of birth of Clarke was not the same as the date of birth on the driver’s licence of Shanice Ebanks.

[242] Det. Graham also stated that on an earlier occasion, he was at the Ontario Court of Justice in Brantford and saw the names of Clarke and Shanice Ebanks on the docket. When their names were called, both of them got up and went into the courtroom.

[243] I find that Clarke used her sister’s driver’s licence in order to rent the room at the Mohawk Motel on March 11, 2018. She did that in order to conceal her own identity. I have no hesitation in finding that she attempted to conceal her identity with the intention of renting this room in order to make the necessary arrangements to have H.B. and M.C perform sexual services for money.

[244] The room that was rented was Room #10. It was a one-bedroom with a bathroom. In the room there was also a couch, a television, on a chest of drawers, and a small fridge.

[245] The room was reserved for two people for one night. If more than two people were staying, the room would cost extra. H.B. and M.C. testified that they were brought to Room #10. Present in the room were H.B., M.C., Clarke, and Alemu.

[246] According to M.C., Alemu was in the hotel room counting money and waving money around Clarke as if it was raining money.

[247] According to M.C., not long after they entered Room #10, Clarke started posting ads on Back Page. She stated that she saw Clarke posting the ads on a cellphone. She also stated that she was using one of the cellphones that Alemu gave her to post the ads because she had forgotten her phone in Redfearn’s car.

[248] Room #10 at the Mohawk Motel was not a large room. M.C. stated that everyone in the room was within a short range of each other and Alemu was close when Clarke was talking about posting, and posting, the ads on Back Page.

[249] M.C. testified that no other person in the room was posting ads.

[250] After about 20 minutes and after posting the ads, Clarke and Alemu left the hotel. She told them that she would be back. Shortly after they left the motel, Clarke texted M.C. advising her that a trick was on his way. M.C. stated that she did not want to have sex with the trick. Both her and M.C. wanted to go home.

[251] She stated that she did not have any money, so she thought she could earn the money to go home by performing the sex acts. Nevertheless, she immediately attempted to contact a cab company to try to get back to Hamilton.

[252] This was corroborated on the extraction report on her phone that was filed as an exhibit.

[253] She also tried to message a friend to arrange for a cab. Although the friend sent a message that a cab was arranged, none arrived.

[254] M.C. also went to the registration area and asked the clerk if she could arrange a cab, as the phone in the room didn’t work and no can was coming for them. The communication was not successful in getting a cab to come.

[255] M.C. testified that she did perform two sexual services that night to attempt to get money to go home. One was oral sex and the other was vaginal sex without a condom. She earned a total of $160.00. She also testified that when Clarke returned to the motel, she immediately took the $160.00.

[256] H.B.’s testimony was very similar to that of M.C. with respect to March 11 at the Mohawk Motel.

[257] H.B. did not see Clarke post the ads on March 11, but she figured that she did when the clients started coming. H.B. stated that when Clarke was leaving, she looked at her and said: “you look scared”. Clarke also told them: “we will be back don’t leave the room”.

[258] H.B. stated that there were three clients in the three hours before Clarke and Alemu came back on March 11, 2018. She stated that she took one and M.C. took two of the clients.

[259] H.B. and M.C. continued their efforts to get out of Brantford on March 11, 2018. Ultimately, H.B. was successful in contacting her friend V.P., and together with their friend S.S., the BPS were contacted.

[260] Clarke and Alemu returned to the room. Clarke took the money earned from the sex acts and then Clarke and Alemu had sex in the bathroom and subsequently fell asleep on the bed.

[261] The police arrived and H.B. and M.C. were taken out of the motel shortly after 1 a.m.

[262] The detailed evidence as described above demonstrates to me that the evidence of H.B. and M.C. was consistent and corroborative with respect to all of the essential elements that the Crown must prove beyond a reasonable doubt.

[263] Counsel for the Alemu submitted that M.C., at age 14, was the driving force behind her and H.B. wanting to do their own thing. H.B. went along with her and both were motivated by money. I reject that submission.

[264] Although money was attractive to both, it became part of the lure used by Clarke to control both H.B. and M.C.

[265] I also find that the element of fear was real for them and it was reasonable under all of the circumstances of this case.

[266] Clarke was aggressive with H.B. early on. H.B. stated that she was nice at first, but when she aggressively told them that they had to perform for all of the clients that came, she felt scared of her.

[267] H.B. felt that Clarke was the boss who had to be obeyed. She controlled her.

[268] Clarke used money and isolation as part of the control of both M.C. and H.B. During wither Time Period #1 or #2, the sexual services that they had to perform took place in Brantford. This is a city that neither were familiar with. They both resided in Hamilton. Neither H.B nor M.C. had any friends or family in the area. Neither had a data plan for their cell phones.

[269] Clarke took almost all the money they earned from sex acts that she had arranged for them to do. I also find that Clarke took any other money that the complainants may have had.

[270] I accept H.B.’s testimony that she did come to Brantford with $300 for Time Period #2 so that she would have a resource to get alternate accommodation or transportation. However, I accept her evidence that she had the money in her jacket pocket and Clarke must have taken it. Neither M.C. nor H.B. had any money when they were taken to the police station and the Brantford Hospital on March 12, 2018.

[271] Both H.B. and M.C. witnessed Clarke in a rage on February 2, 2018. She attacked H.B. The importance of this is that the description by both complainants showed Clarke as someone who was acting “crazy” and out of control. This would naturally be an incident that would produce fear in them.

[272] The obvious question would arise in anyone that if that fear was present, why would any person go back to be in that person’s presence. I accept that H.B. still considered M.C. as her friend and a person she could trust. Under those circumstance she did not want her friend to go alone. This was especially the case since the representation was that they were only going to see Clarke’s new home and hang out. Both complainants were deceived by Clarke.

The Law and Analysis

[273] For ease of reference, when reviewing the law and analysis, the charges will be categorized under the following heading:

a. Trafficking of one or more persons contrary to s. 279.01(1).

b. Trafficking of one or more persons under the age of 18 years contrary to s. 279.011(1).

c. Advertising one or more persons to provide sexual services contrary to s. 286.4(a).

d. Receiving financial, or other material benefit, knowing it was obtained from or derived from directly or indirectly from the commission of an offence contrary to s. 286.1(2), under s. 286.2(2).

e. Procuring a person to offer or provide sexual services contrary to s. 286.3(1)-(2).

f. Possession of false identification to commit fraud or deceit, contrary to s. 402.2(1).

Trafficking

[274] Trafficking is set out in s. 279.01 of the Code. If the person being trafficked is under the age of 18, the offence is set out in s. 279.011(1). In the later section, the additional element of proof that the person trafficked is under 18 is required. All of the other elements of the offence or trafficking remain the same.

[275] The Ontario Court of Appeal summarized the elements of the offence of Human Trafficking in R. v. Gallone, 2019 ONCA 663, commencing at para. 14:

HUMAN TRAFFICKING

A. The elements of the offence

[14] The human trafficking offence in s. 279.01 was enacted in November 2005 by Bill C-49, An Act to amend the Criminal Code (trafficking in persons), 1st Sess., 38th Parl., 2005 (assented to 25 November 2005), S.C. 2005, c. 43. 2019 ONCA 663 Page: 6

[15] The relevant portions of the offence read as follows: 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 [.] (2) No consent to the activity that forms the subject matter of a charge under subsection (1) is valid.

[16] Exploitation is defined in s. 279.04: 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 fail to provide, or offer to provide, the labour or service. (2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused (a) used or threatened to use force or another form of coercion; (b) used deception; or (c) abused a position of trust, power or authority. (3) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed. 2019 ONCA 663 Page: 7

[17] The Crown must establish beyond a reasonable doubt two elements to make out the offence of human trafficking. First, it must prove that the accused did anything that satisfies the conduct requirement set out in s. 279.01(1) in relation to a person. Second, it must prove that the accused intended to do anything that satisfies the conduct requirement, and that the accused acted with the purpose of exploiting or facilitating the exploitation of that person: R. v. A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377, at paras. 79, 82.

[32] Subsection 279.01(1) captures “[e]very 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” (emphasis added).

[33] On a plain reading of s. 279.01(1), it is clear from the use of the word “or” throughout the part of the provision describing the conduct caught by it that the actus reus is disjunctive – not, as the trial judge interpreted it, conjunctive. Thus, the conduct requirement is made out if the accused engaged in any one of the specific types of conduct set out in the first part of the provision – i.e. recruits, transports, transfers, receives, holds, conceals or harbours. It is also made out if the accused’s conduct satisfies one of the acts in the second part – i.e. exercises control, direction, or influence over the movements of a person. For example, the actus reus would be made out if the accused recruited the complainant. It would also be made out if the accused exercised influence over the movements of the complainant.

[276] In R. v. Sinclair, 2020 ONCA 61, the court affirmed the approach taken by Henshel J. in Crosdale at para. 15:

[15] Circumstances that might be relevant when assessing whether conduct could reasonably be expected to cause a complainant to fear for their safety might include:

• the presence or absence of violence or threats

• coercion, including physical, emotional or psychological

• deception

• abuse of trust, power, or authority

• vulnerability due to age or personal circumstances, such as social or economic disadvantage and victimization from other sources

• isolation of the complainant

• the nature of the relationship between the accused and the complainant

• directive behaviour

• influence exercised over the nature and location services provided

• control over advertising of services

• limitations on the complainant’s movement

• control of finances

• financial benefit to the accused, and

• use of social media to assert control or monitor communications with others.

[277] Many of the factors set out in Sinclair have direct application to this case. The factors that are set out are also interconnected given the findings of fact that I have made and will expand upon in this section of my analysis. I will review the factors and my findings below.

The presence or absence of violence or threats

[278] I find that Clarke physically assaulted H.B. on February 2, 2018. She approached her while she was seated in a car. I find that she was yelling at her and demanding money from her. She also demanded the return of her ring. I accept the evidence of H.B. that Clarke pulled her hair and grabbed her hand and attempted to pull a ring from her finger.

[279] I find that Clarke was conducting herself in the manner as set out above while in a rage. I accept M.C.’s evidence that on this occasion, Clarke was acting, in her words “crazy”. I accept H.B.’s evidence that Clarke was yelling at her while pulling her hair and grabbing at her hand and finger to remove the ring.

[280] I find that Clarke threatened H.B. and M.C. by telling them that they better perform the sexual services on the tricks “or else”.

[281] I find that Clarke was threatening to H.B. on March 11, 2018, when she said to her, “give me ten reasons why I shouldn’t knock you out.” She immediately followed that with, “you are going to make back all the money you owe me”.

Coercion that included physical, emotional and psychological

[282] The coercive control was manifested in the above noted conduct that I referred to in the section dealing with the presence or absence of physical violence or threats on the part of Clarke. That conduct is interconnected with the issue of whether Clarke exercised coercive conduct that would be emotional and psychological.

[283] The impact of such conduct, amongst other things, contributed to the emotional and psychological stress exhibited in both H.B. and M.C. during Time Period #1 and #2.

[284] There was ample evidence that demonstrated that both H.B. and M.C. were scared and, at times, emotional during the relevant periods of time.

[285] H.B. sent a message to her friend V.P. in the early morning hours of March 12, 2018. The message indicated that she and 14-year-old M.C. were in the bathroom, scared and crying.

[286] PC McCallum stated that when she was at the Mohawk Motel and entered Room #10, she observed that both H.B. and M.C. were nervous and scared. They wanted to get away from the Mohawk Motel.

[287] PC Bignell attended at the Brantford General Hospital where H.B. and M.C. had been taken after their police interviews. PC Bignell stated that she observed H.B. and M.C. to be very emotional and hanging on to each other.

[288] The emotional and psychological impact of the events during Time Period #1 and #2 crystalized in their testimony at trial.

[289] H.B. stated that she tried to forget all of this and “now that it is coming back to me, I don’t like the feelings that I have”.

[290] I have no hesitation in finding that the many outbursts of M.C. during her testimony were a direct result of her feeling used and manipulated by Clarke. She as only 14 years old, and she described her experience over the relevant periods made her feel used and degraded, like she was a piece of trash. She stated that she was 14 and having sex with old men, and then giving all of the money she earned back to Clarke. She also stated that she didn’t remember why gave her the money. She followed that with, she was young and gullible.

Deception

[291] I find that Clarke deceived H.B. and M.C. on multiple occasions.

[292] Clarke started out as friendly to both of the complainants. She represented to them that they were coming to Brantford to hang out and party. In Time Period #1, that is how the relationship started out. However, that soon turned to Clarke influencing the complainants to get involved in the sex trade. She used the lure of making a lot of money in order to ensnare them. However, I find that that lure of money was a deception. I find that Clarke took most of the money that was earned by the complainants.

[293] On March 11, 2018, Clarke deceived M.C. and indirectly H.B. with her invitation to M.C. to come to Brantford to hang out and see her new house. That invitation was passed on by M.C. to H.B. M.C. informed Clarke that she invited H.B. to come with her to hang out and see her new house. That deception became more obvious then Clarke threatened H.B. upon her entering the car on March 11, 2018, both to possibly knock her out and at the same time asserting that H.B. was going to make back all the money she owed Clarke.

Abuse of trust power and authority

[294] The trust that M.C. and H.B. had with Clarke was short-lived. M.C. had met Clarke on a previous occasion. She stated that she was friendly, and they just hung out as friends.

[295] M.C. passed that information on to H.B. at the outset of Time Period #1. She told H.B. that Clarke was her friend; when H.B. first met Clarke, she did find her friendly.

[296] However, M.C. testified that during this period she was only 14 years old, and she thought that she was older than she was. She thought that she could trust people, and she realised that she could not. According to M.C., friends do not use other friends.

[297] Both M.C. and H.B. testified that they felt that Clarke was in control of them. I find that their perception of being controlled by Clarke was reasonable considering all of the evidence. M.C. was controlled, partly by Clarke and partly by the manner in which Clarke dealt with the money. She lured M.C. with the promise of making a lot of money, and then she deprived M.C. of the use of any money, as Clarke took it all.

[298] I also find that H.B. was controlled by money in the same way as Clarke. In addition, H.B. clearly felt that Clarke was the boss of her, and she had to be obeyed.

[299] I find that Clarke knew how much of a friend M.C. was to H.B. She used that as part of her control over H.B. H.B. was uncomfortable with the sex trade talk until M.C. said it was okay. After her friend reassured her that it was okay, H.B. agreed to become involved.

[300] H.B. agreed to go to Brantford for Time Period #2 on March 11, 2018, so that M.C. did not have to go by herself. Clarke saw this as an opportunity to make more money off of both of them by arranging even more sex clients for them at the Mohawk Motel.

Vulnerability due to age and circumstances such as social circumstances, economic disadvantage and victimization from other sources

[301] M.C., at age 14, was vulnerable. I agree with her testimony that she thought she was older. She was hanging out with older people and she was going through bad times. Clarke took advantage of her. I find that Clarke knew that she was very young. I accept H.B.’s testimony that she told Clarke at some point, but that knowledge had little impact on Clarke as she continued to sex trade M.C. If I am wrong in that analysis, I find that Clarke was reckless in her disregard to any consideration of M.C.’s age. There is ample evidence that others had concerns that M.C. was too young.

[302] I accept H.B.’s testimony that two sex trade clients declined to have sex with M.C. given their observation of her age. In addition, the clerk at the Comfort Inn called the police as she was concerned with the fact that there were two very young females in one of their rooms and she was concerned with their security.

[303] Despite the fact that H.B. and Clarke lied to the police when they came to check on their safety given the age concerns expressed by the clerk, the police warned H.B. and Clarke that posting sex images on the internet of underage girls could result in child pornography charges.

[304] H.B. was only 16 years old during the material times. Both H.B. and Clarke lived at home with their mothers. Both complainants did not want to have to rely on their mothers to give them money to buy things for them. I find that their personal circumstances made them vulnerable to the lure of making money.

Directive behaviour and control over the advertising and locations

[305] I find that Clarke directed all the complainants’ conduct and involvement in the sex trade activities. I accept H.B.’s testimony that Clarke told both complainants that they would be required to perform oral sex and vaginal penetration, and sex without condoms if the client agreed to pay more.

[306] I accept the evidence of H.B. that Clarke set the price for the sexual services and told H.B. and M.C. that they must ask for the money first and then place the money in the drawer beside the bed.

[307] Clarke arranged for and paid for the Room 10 at the Mohawk Motel. She attempted to arrange for and pay for a room at the Comfort Inn on March 11, but she was not successful.

[308] I do not agree with the accused’s submissions that H.B. and Clarke were free to call anyone and free to leave any of the hotels at any time.

[309] I find that Clarke exhibited such control over the complainants that it was reasonable for them to feel that they could not disobey her directions. The fact that Clarke left the hotels or motels from time to time gave little comfort to the complainants when Clarke told them that they could not leave and that she would be back. She never gave a timeline of when she would be back. However, she made it clear to the complainants that they had to service all the clients sent to them.

[310] The court in Gallone went on to comment on the procuring section of the Code, s. 286.3(1), commencing at para. 57:

[57] The new procuring offence set out in s. 286.3(1) reads as follows: 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.

Application of the Law to each of the counts charged

Counts One and Two against Clarke: Trafficking of H.B. (Count One), trafficking of M.C. (Count Two) (Subsection 270.011(1))

[311] There is an abundance of evidence that Clarke recruited, transported, and concealed both H.B. and M.C. to work in the sex trade and that she did so for the purpose of exploiting H.B. and M.C. I find that the evidence established beyond a reasonable doubt that Clarke exercised control, gave direction, and had influence over the movements of H.B. and Clarke during all the relevant time frames.

[312] I find that at the relevant times, Clarke was 14 years of age and H.B. was 16 years of age.

[313] I find that Clarke knew both H.B. and M.C. were under the age of 18.

[314] I accept the evidence of both complainants that Clarke took most of the money they earned while doing sexual services for money during both Time Period #1 and #2, as set out earlier in these reasons.

[315] I find that Clarke had every intention of taking the money that H.B. and M.C. made in the sex trade and that she did take most of their money. A prime example of this is found in the evidence of M.C. and H.B. with respect to what sex acts they performed on March 11, 2018. M.C. stated that she had two clients; one paid her $100 for vaginal sex and the other paid her $60 for oral sex. H.B. stated that she performed one sex act on March 11, 2018, and she received $100.

[316] I accept the testimony of M.C. and H.B. that they left the Mohawk Motel on March 12, 2018, with no money. I find that the only inference that can be drawn, given the evidence of the sex acts done by the complainants, the amount of money they received, their testimony that Clarke took that money, coupled with the finding that there was Canadian currency in the amount close to what was earned by the complaints, is that that money was money earned from the sex acts done by the complainants that had been arranged by Clarke.

[317] During Time Period #1, Clarke recruited both M.C. and H.B. She influenced them with the promise of making a lot of money performing sexual acts for money.

[318] I find that Clarke paid for and posted ads on Back Page in order to get clients so that M.C. and H.B. could perform the sexual acts for money.

[319] Clarke rented the hotel rooms and paid for cabs to go from one hotel to another one during Time Period #1. Neither M.C. nor H.B. had any money when they came to Brantford on this occasion. They thought they were just going to hang out with friends.

[320] I find that Clarke directed both complainants on what sex acts to perform and how much to charge.

[321] During Time Period #1, Clarke would arrange for the clients to either come to the hotel for the sexual services or she would text the complainants with respect to what outcalls they were to attend to provide sexual services.

[322] I find that both complainants provided multiple sexual services for clients over this time. The complainants could not recall an actual number. However, I accept the estimate of H.B. that there were in excess of 15 clients over this period of time and approximately $900 was earned by H.B. M.C. could not give an estimate of the number of clients that she performed sex acts for nor the amount of money made. However, I accept their evidence that they provided sexual services on multiple occasions for clients, arranged by Clarke, and that Clarke took most, if not all, the money for such services.

[323] Having regard to my findings I find Clarke guilty beyond a reasonable doubt on counts one and two.

Counts Three and Four

[324] Having regard to my findings as set out above, I find that Clarke did receive a financial benefit knowing that benefit was obtained or derived directly or indirectly form the omission of an offence under s. 279.011(1), and she is therefore guilty on counts three and four.

Count Five

[325] Having regard to my findings as set out above, I find Clarke guilty of advertising one or more offers for a person to provide sexual services for consideration, contrary to s. 286.4(a) of the Code.

Counts Six and Seven

[326] Having regard to my findings, I find Clarke guilty of procuring H.B. and M.C., who were persons under 18, at all material times to provide sexual services and for the purpose of facilitating an offence under s. 286.1(2). She exercised control over H.B. and over Clarke. She directed them as to who to provide those sexual services to. She directed them on what sexual services to provide, and she had direct influence over their movements. I find Clarke guilty on counts six and seven.

Count Eight: Alemu’s charges

[327] Alemu is charged with one count. It is alleged that on March 11and March 12, 2018, in the City of Brantford, that for the purpose of facilitating an offence under subsection 286.1(2), hold, conceal, or harbour H.B. and/or M.C., who was under the age of 18 years, who offered or provided sexual services during this time-period for consideration, or that he exercised control, direction or influence over the movements of H.B. and/or M.C., contrary to subsection 286.3(2) of the Code.

[328] I find that Alemu was in concert with Clarke. He was her boyfriend. He was near her in Redfearn’s vehicle when Clarke said to H.B. that she was going to pay back all the money she owed her. On March 11, 2018, he went into the Comfort Inn with Clarke to rent a room. I reject the submission of Clarke’s counsel that it is reasonable to find that they were simply a boyfriend and girlfriend renting a room to stay with each other for the night. This does not make any logical sense when considering the evidence that they came with H.B. and M.C.

[329] When H.B. and M.C. entered the lobby, Alemu asked them why they came into the lobby. Once they were in the lobby, both Alemu and Clarke were making efforts to try to rent a room at an alternate hotel.

[330] Clarke, Alemu, H.B. and M.C. went by cab to the Mohawk Motel. Alemu gave Clarke the cash to rent a hotel room. Once the room was rented, all four of them entered the Room #10.

[331] While in the room, Alemu was waving a lot of cash around in Clarke’s face, like it was raining money.

[332] The room was small, and it is obvious to me that everyone in the room could see and hear others in the room. There was no evidence that anyone was wearing headphones or was otherwise obstructed from hearing or seeing what was going on.

[333] Clarke stated that she was going to post ads on Back Page. However, she did not have her phone at that time as she had left it in Redfearn’s car.

[334] Both M.C. and H.B. testified that Alemu had two phones and gave one of the phones to Clarke in order to post the ads. M.C. testified that she saw Clarke use the phone to post the ads.

[335] When Clarke and Alemu came back to the room, Clarke took the money that M.C. and H.B. earned from providing sexual services and put it in her bag.

[336] I find that the Crown has proved beyond a reasonable doubt that Alemu facilitated and participated in the offence contrary to subsection 286.1(2) with respect to H.B. and M.C. He knew that H.B and M.C. were to perform sexual services for money on March 11, 2018,. He knew that Clarke was placing ads for them to get clients to perform those acts for money. Clarke placed those as on a cell phone that Alemu gave her. The room 10 at the Mohawk Motel was rented by Clarke with money that Alemu had given to her.

[337] Just before Alemu and Clarke left the Mohawk Motel on March 11, 2018 Alemu was present when Clarke told M.C. and H.B. that they would be back, and that M.C. and H.B. were not to leave the motel room. By acting in concert with Clarke, he was also exercising control over M.C. and H.B.

[338] Having regard to my findings, I find Alemu guilty on count eight.

Count Nine: Charge against Clarke for using false identification

[339] Having regard to my findings, set out in paragraphs 238 through 243 in these reasons I find that the Crown has proven beyond a reasonable doubt that Clarke was in possession of her sister, Shanice Ebanks’s, driver’s licence on March 11, 2018 and March 12, 2018, in circumstances giving rise to a reasonable inference that the identity of Shanice Ebanks was intended to be used to commit an indictable offence that included fraud, deceit or falsehood as an element of the offence, which in this case included s. 279.011(1), s. 279.02, and s. 286.3.

[340] I find her guilty on count nine.

Count Ten: Possession of Canadian Currency obtained form the commission of an offence in Canada that is punishable by Indictment including ss. 279.011.(1), 279.02, 286.2, 286.3 and 286.4(a)

[341] I accept the testimony of M.C. and H.B. that on March 11, 2018 they performed sexual services for 3 clients. M.C. performed those services for 2 of those clients and H.B. for one client. M.C. earned $160.00 for her services and H.B. earned $100.00. Both complainants testified that when Clarke returned to room 10 on the that evening, she took the money that they earned. Pursuant the warrant room 10 at the Mohawk Motel was search and the sum of $289.85 was found in one of the bags located in that room that I find belonged to Clarke.

[342] When Clarke was arrested on March 12, 2018, she was searched at the Brantford Police station. Located in a breast pocket of her jacket was what was described at a “wad of bills.”. when counted the total that was secured by an elastic band amounted to $8,890.00 in Canadian Currency.

[343] I accept that some of that money may have come from Alemu from the return of funds from the Peel Police only 2 days prior to the arrest of Clarke and Alemu. That sum was $7,273.90. The difference in the amounts totals $1,617.10. I am not able to find beyond a reasonable doubt that any of those funds came from sexual services that the complainants performed on this occasion. There is no evidentiary tie with the funds picked up by Alemu from the Peel police and the funds found in the breast pocket of Clarke’s jacket that was located at the Brantford police station on March 12, 2018.

[344] With respect the $289.85 found in one of the red triangular bag left by Clarke in Room 10, I find that the only inference that can be drawn by me beyond a reasonable doubt is that most of that money did come from the sexual services performed by the complainants on March 11, 2018. The sum of $260.00 earned by H.B. and M.C. on March 11 was taken by Clarke approximately 1 to 2 hours before H.B. and M.C. left that room with the police on March 11, 2018. They had no money on them when they left. I find Clarke guilty of possession of Canadian Currency obtained from the commission of an offence in Canada that is punishable by Indictment including ss.219.011.(1) 279.02.286.3 and 286.4(a).

The Honourable R. J. Harper, SCJ

Released: November 12, 2021