COURT FILE NO.: CR-21-50000086-0000

DATE: 20220525

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TAPIWA MUSARA, STEPHAN MYERS, DEVONE NOLAN

Defendants

Susan Orlando, David Steinberg, Julia DeVuono, for the Crown

Megan Andrews, for Tapiwa Musara

Melody Izadi, for Stephan Myers

Emily Lam, for Devone Nolan

HEARD: February 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24 and 25, 2022

JUSTICE S. NAKATSURU

[1] For a young woman in her early twenties, S.D. has seen more than her fair share of struggles. In this trial, I got a good look into those struggles when she was just 18 years of age. Raised in Orillia, after being gang sexually assaulted at a party in Barrie, she quickly became a cocaine addict and alleges she was trafficked in the sex trade throughout Ontario for nearly a year. Stephan Myers stands accused of procuring her into the sex trade and of offences arising out of the allegation he was S.D.’s “pimp.” Tapiwa Musara is said to be an associate of Mr. Myers and is accused of similar offences after Mr. Myers went to jail for charges arising out of a shooting incident involving the mother of his child. Devone Nolan is said be part of the group that Mr. Myers and Mr. Musara belonged to. He is accused of sexual assaulting S.D., procuring, and receiving material benefits.

[2] Plainly, the credibility and reliability of S.D.’s testimony is fundamental to a just decision. The defence has vigorously attacked her testimony. The Crown argues that whatever problems exist with her testimony, she is telling the truth about these crimes.

[3] In these reasons, I will:

(1) Set out an overview of the case;

(2) Make general findings about S.D.; and

(3) deal with each accused and each count separately.

When I deal with each count, I will further explain my factual findings and apply the law to them.

A. BRIEF OVERVIEW OF THE CASE

[4] In March of 2018, S.D. went with her high school friend, Jamie, to a party at a student residence in Barrie, Ontario. They had been invited to the party by a man they had just met on a dating website. Tapiwa Musara, only known to S.D. as “Tap”, lived there with roommates. She was sexually assaulted by seven men after she became severely intoxicated. After the assaults, Mr. Musara invited her to his room where he allegedly sexually assaulted her.

[5] Two weeks later, S.D. returned to Mr. Musara’s apartment at his invitation. She did lines of cocaine. Mr. Myers came to the residence and showed her a bundle of cash. Mr. Myers persuaded her to enter into the sex trade and he became her pimp. Until February of 2019, S.D. alleges that she feared Mr. Myers, worked for him at his direction, and handed over to him the proceeds of her escorting. She also became involved in a relationship with him.

[6] In October of 2019, S.D. was present when Mr. Myers discharged a firearm at the mother of his child during a dispute in a Shopper’s Drug Mart parking lot in Mississauga. S.D. drove Mr. Myers away from the scene. The next day, Mr. Myers turned himself in to the police. That day, S.D. threw the gun used in the shooting along with another gun and a taser into Lake Couchiching near Orillia, S.D.’s hometown. Anya Browne who was a tenant in the residence of Mr. Myers’s mother, Ms. Myers-Ellis, is alleged to have driven her to the lake to do that.

[7] While Mr. Myers was in jail awaiting his charges, S.D. claims that Mr. Musara sold her drugs. He also threatened and assaulted her. With his permission and knowledge, she continued her sex trade in Mr. Musara’s residence. Also, she conducted her sex trade in a couple of Airbnbs that Mr. Musara rented.

[8] Finally, S.D. claims that Devone Nolan, only known to her as “Body”, sexually assaulted her when Mr. Myers was in jail. At Mr. Musara’s residence, Mr. Nolan had sexual intercourse with her over her objections. He also tried to get S.D. to work for him. He also received a payment from her for an Airbnb rental.

[9] Eventually, on February 24, 2019, with the help of police escorts, S.D. moved out of the basement of 48 Drake Drive in Barrie, Ontario, where she had lived with Mr. Myers. The residence is the home of Ms. Myers-Ellis.

[10] On March 3, 2019, S.D. went to the Toronto Police Service as she had become fearful of someone who she thought was an associate of Mr. Myers, videotaping her while she was staying at a shelter in Toronto. The police referred her to the Human Trafficking Enforcement Team (“HTET”) of the Toronto Police Service.

[11] On March 5, 2019, D.C. Powell and D.C. Zeppieri of the HTET met with S.D. A sworn videotaped statement was taken from her. This led to further investigation including other interviews and meetings with S.D., surveillance, the execution of several search warrants, a production order, and the digital examination of electronic devices. Ultimately Mr. Myers, Mr. Musara, and Mr. Nolan were charged with sexual assault and offences related to human trafficking.

B. GENERAL FINDINGS REGARDING S.D.

[12] I start with this observation. To properly assess the evidence in cases like this, a trauma-informed approach must be taken. Otherwise, the testimony of a complainant will not be given the weight it deserves. Otherwise, the truth of what happened will not be uncovered.

[13] That said, as in any criminal trial where the liberty of the individual is at stake and the presumption of innocence is in play, accusations leveled against any person, regardless of nature of the offence or the background of the complainant, must be carefully scrutinized. This includes the testimony of those who have experienced past trauma.

[14] In taking this approach, I conclude that S.D.’s testimony must be approached with caution. There are good reasons for this:

(1) her memory has been badly affected by factors such as the passage of time and the consumption of intoxicants;

(2) she has a motive to be less than completely candid;

(3) she has implicated herself in a number of criminal offences including giving a false name to the police, attempting to recruit other girls in the sex trade, selling cocaine, and disposing of weapons including a gun used in a shooting;

(4) she has given inconsistent statements about material matters;

(5) some police questioning and procedures may have been suggestive;

(6) she has a tendency to exaggerate, does not communicate her evidence well, and her cross-examination was riddled with the answer “I don’t recall.”

[15] I will more specifically address some of these factors.

[16] One significant one is her drug use, mainly cocaine. She also used to a lesser extent, marijuana, ecstasy, acid, and pills. Her cocaine addiction was severe and is ongoing. It has made her paranoid and anxious. It is worth mentioning that even before she was introduced to cocaine, S.D. was already taking medications for anxiety. The cocaine affected her sleep and her appetite. At its worst, she was barely sleeping or eating. It also affected her perceptions of the passage of time. S.D. would think a day had passed when it was two or three. I find it also has affected her memory. I do not accept S.D.’s testimony to the contrary.

[17] While this is true, it is important to recognize her drug use only started when she was introduced to Mr. Myers and Mr. Musara. As well, her cocaine use was not that bad in the beginning. Thus, its effects on S.D. would not have been so great in the beginning. However, by the time Mr. Myers went to jail on October 13, 2018, until shortly before she left Mr. Myers’s mother’s home on February 24, 2019, it was at its most severe.

[18] Then there is the issue about the “black pimp.” In S.D.’s statement under oath to D.C. Powell and D.C. Zeppieri on March 5, 2019, she told the police that this man, a black pimp and a “bro” of Mr. Myers, picked her up at the Sandman Hotel in Mississauga, drove her and the two guns and taser she brought with her to Lake Couchiching, and directed her to throw them into the lake. This was after an alleged shooting that Mr. Myers was involved in for which S.D. was present at. She told the police more details of the man, such as previously meeting him at one of the parties. On March 21, 2019, when she went with the police to Lake Couchiching to show them the location of the weapons, she again referred to this man. It was not until May of that year, when on a drive to a bank to pick up bank records, that S.D. told D.C. Powell and D.C. Zeppieri that she “remembered” something about this driver. He was a “she.” She was Anya Browne; someone S.D. shared a home with at 48 Drake Drive for months. Ms. Browne was a tenant and a close friend of Ms. Myers-Ellis. She was not a pimp.

[19] S.D. cannot explain this astounding turn of events. It is just how she remembered things at the time. Of course, this is not a minor detail nor a minor inconsistency.

[20] To me, there are two possible explanations. First, she lied under oath to the police about who this person who took her to the lake was. I am not sure what her motivation would be. Perhaps she claimed it was a male black pimp to make this person more menacing, thus, adding greater weight to her claim she was acting under duress to get rid of the guns and taser. Perhaps she wanted to protect Ms. Browne, though S.D. does not ever say she was close to her. I really do not know. But if it is such a deliberate lie, it would mean that S.D. has little regard for the legal and moral duty to tell the truth that an oath entails or for the circumstances in which she claims she was telling the complete truth to the police in order to gain their help in ensuring her safety from any retribution from Mr. Myers for leaving him and the sex trade.

[21] The second explanation is that her memory is that badly corrupted. That she truly believed one thing when it was something so different. Only to recollect it, without any reasonable explanation, over a month later. If this is the case, I find it very worrisome. This kind of a lapse in memory is hard to fathom. This is not a peripheral detail. It is something very important. It is simply difficult to accept a person’s memory can be so wrong. It leads me to worry what the true state of her memory is about these events. Is this corruption of her memory isolated to this one thing? Or have whatever difficulties made her believe this was someone so radically different, infected her other recollections. Something remaining undetected.

[22] If I had to choose, I would tend to find it was not a deliberate falsehood. I say this because if she had chosen to lie to the police about this, there was no reason for her to later volunteer she recalled it to be Ms. Browne. Additionally, Ms. Browne admits that she drove S.D. to Lake Couchiching, though she denies S.D. threw any weapons into the lake. Thus, there is some confirmation that S.D.’s new recollection is true.

[23] If S.D.’s testimony was compelling other than for these two weaknesses, I would be more comforted in finding this was a bizarre but limited failure of memory. But as I will explain, it is not. Her evidence suffers from other frailties. For now, I will say that I believe S.D. feels she is telling the truth. But the truth for her is changeable given the unpredictable nature of her recollections. For a trier-of-fact like me, tasked with finding the truth, blindly relying on her apparent honesty is highly problematic because her ability to recall is impaired. She was consistently inconsistent in her testimony, and she answered many questions with what sounded like rote responses, which though genuine for her, at times, acted as a shield to effective cross-examination.

[24] There is then her alleged motive to lie. The defence submits that S.D. had a motive to minimize her involvement and to point a finger at Mr. Myers as well as the other accused. It is argued that S.D. went to the police in order to get ahead of any allegations that could be made by someone that she disposed of firearms and committed other criminal acts. Having lied, the defence submits that S.D. must now continue to maintain those falsehoods.

[25] I do not accept this argument. S.D. voluntarily went to the police. She may well have been suffering from anxiety or even paranoia, but her genuine subjective fear of Mr. Myers and his associates was undoubtedly one of the main reasons why she went to the police. To say it in another way, S.D. provided the information not under police pressure as a known suspect in a shooting. The police knew nothing about her or anything potentially criminal she may have done. Had she wished, she could have simply not said anything to the police and thus have no reason to falsely accuse people. Furthermore, given the limited people who knew what she had done – all of whom had no reason to go to the police – it cannot reasonably be maintained she went to talk to the police before her involvement became known.

[26] I appreciate that before she went to speak to the Toronto Police Service, Peel Region detectives had come to question her about the shooting. However, this was some time before she went to the Toronto police. Additionally, except for that one brief interview that took place at 48 Drake Drive by the detectives, no further action was being taken by the police that S.D. was aware of. Mr. Myers had already been arrested. There was no reason for her to believe she was a suspect in that shooting. Nonetheless, she freely went to the HTET on her own initiative and gave them evidence that the police would not become aware of but for her cooperation. Moreover, if she truly had wanted to get ahead of any allegations that might be made against her, as the defence claims, she would have done more to seek assurances and protections from the police before she gave them statements that clearly implicated herself. S.D. asked for nothing. Before she gave the statements, she was given nothing by the police.

[27] Be that as it may, I do recognize that once she chose to speak to the police, she could have wanted to paint herself as a victim and in the best possible light to garner their help and sympathy. However, when I assess her complete testimony, I do not find this motive has significantly affected her honesty; it has not falsely twisted her evidence.

[28] I add that S.D. reveals little animus or hostility towards the accused. This despite some serious allegations of violence they perpetrated on her. S.D. says she fears Mr. Myers but has no anger. Regarding Mr. Musara, Mr. Musara himself testified that he was her friend and was just trying to help her in various ways including with her addiction. Regarding Mr. Nolan, it seems that S.D. did not really know him that well.

[29] This lack of apparent motive adds nothing to the proof of the prosecution case.[^1] It proves nothing nor does it per se support S.D.’s credibility. There is no onus on the defence to prove a lack of motive. I just refer to motive to assess the defence argument about a potential motive to lie. Motive, or lack of a motive, is just one factor in the assessment of credibility: R. v. S.R., 2022 ONCA 192, at paras. 29-30. Here, I do not find any motives that prevent me from finding S.D. credible.

[30] Likewise, S.D.’s admitted involvement in criminal offences is a factor in assessing her credibility. Some offences have less of an impact, as they were connected to her drug use and her relationship with Mr. Myers. Others show a more deceptive character on her part. I take this all into consideration.

[31] In sum, to convict on S.D.’s testimony alone is dangerous. Plain common-sense tells me to look for corroboration. Corroborative evidence is evidence independent of S.D. Confirmatory evidence supports S.D.’s testimony but does not exist independent of S.D. Henceforth in my reasons, I will mainly refer to confirmation though I stress that I am aware of the distinction. Where confirmation is lacking, then, while I am permitted to accept her evidence regardless, I should have pretty good reasons for doing so given the factors outlined.

[32] After carefully assessing the whole of the evidence, I find that overall S.D. was an honest witness. But particularly on the facts of this case, a finding of credibility is not the same as a finding of reliability.

[33] S.D. is not careful in remembering things. This is not to say she does not truly believe in her memories. She mainly does. My difficulty is that just because she honestly believes in them, does not mean they are reliable. It seems that once a recollection comes into her head, she says this is what happened to her. But at another time, this recollection may be gone, or it may have changed. Her testimony then changes.

[34] Having made these general findings about S.D, I turn now to assess whether the Crown has proven beyond reasonable doubt the charges against Mr. Myers. I will then turn to Mr. Musara and Mr. Nolan. The three accused have been jointly charged on some counts. On other counts, only one accused is charged. Regardless, I am mindful that evidence against each accused on each count must be assessed separately.

C. THE CHARGES AGAINST STEPHAN MYERS

1. Count 1: Human Trafficking

(a). The Offence Under s. 279.01(1)

[35] The offence of human trafficking under section 279.01(1) of the Criminal Code, R.S.C., 1985, c. C-46, reads as follows:

(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...

[36] Exploitation is defined under section 279.04(1) and (2) of the Criminal Code:

(1). For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service

(2). In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused

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

(b) used deception; or

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

[37] In R. v. Sinclair, 2020 ONCA 61, at paras. 9 to 15, Pardu J.A. summarized the elements of this offence:

• The first element of the offence is an action by the accused, who must be a person who "recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person".
• Exercising control is like giving an order that the person has little choice but to obey. Exercising direction is like imposing a rule that the person should follow. Exercising influence is like proposing an idea and persuading the person to adopt. Influence is something less coercive than direction. Influence can be exerted while still allowing scope for the person’s free will to operate. Influence would include anything done to induce, alter, sway or affect the will of the complainant. Important is that the control, direction, and influence must be over “the movements” of the person and not just in general;
• The second element of the offence is that the accused's actions must be for the purpose of exploiting or facilitating the exploitation of the complainant. Actual exploitation is not required. The focus of this inquiry is on the accused's state of mind. Where exploitation arises on the facts, inferring that the accused's purpose was to exploit the victim will usually be a relatively straightforward task;
• The third element is met if the accused causes the complainant to provide or offer to provide a service;
• The fourth element is that the accused so causes the complainant to provide or offer a service by "engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service". Actual exploitation is not necessary. The fourth element is assessed on an objective basis. Safety includes protection from psychological harm.

[38] Pardu J.A. also listed circumstances that might be relevant when assessing whether conduct could reasonably be expected to cause a complainant to fear for their safety:

• 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.

(b). Analysis of the Evidence

[39] The Crown has proven the offence of human trafficking against Mr. Myers beyond a reasonable doubt for the following reasons.

[40] Despite the reliability issues in S.D.’s evidence, I accept it when it comes to the material facts of this offence. Her testimony regarding this offence is well confirmed by other evidence. Moreover, there is also independent evidence of Mr. Myers’s guilt on his cellphones.

[41] S.D. was straightforward and unshaken that Mr. Myers induced her to the sex trade roughly two weeks after the party at Mr. Musara’s home where she was gang sexually assaulted. She described how a couple of days later Mr. Myers took her to a motel along with another pimp and another female sex worker. Mr. Myers bought S.D. lingerie and other items to be used by her. In the hotel room, he took photos of her in the lingerie. He posted an escort ad for her. He determined the prices. He was in contact with the clients. He listened discretely on speaker phone during the sexual encounters because S.D. was anxious as she had never done this before. He decided that he and S.D. would share the proceeds of her sex work 50/50.

[42] Thereafter, for a number of months, S.D. described how Mr. Myers would take her to various hotels in Toronto, Mississauga, Barrie, Ottawa, London, and Windsor. In short, Mr. Myers was in the colloquial vernacular, her “pimp.” According to S.D., he was her only pimp from the time she started sex work, in March or April of 2018, until she moved out of Mr. Myers’s mother’s home on February 24, 2019.

[43] I find that her drug or alcohol use has not affected her recollections on this. She had only been introduced to cocaine when she started working for Mr. Myers. Her drug use was not that bad then. It did not significantly impair her memories of her interactions with Mr. Myers. In addition, given the length of time she was with Mr. Myers, the plausibility of her testimony about her relationship with him, and the nature of what she can recall from that time, I find that if there is any impairment of her recollections by drug use, it does not cause me any doubt about the core part of S.D.’s testimony about what happened between her and Mr. Myers. Put another way, her substance abuse or addiction, whatever its severity, could not have sullied her memory to the extent that her entire testimony against Mr. Myers is unreliable.

[44] Finally, when it comes to this count, there is an abundance of evidence supporting S.D.’s testimony. Some generally confirms her testimony. Other evidence more specifically confirms parts of her testimony that is directly relevant to proof of the elements of the human trafficking offence. Moreover, some evidence independently proves Mr. Myers’s involvement in the crimes.

[45] The following is the evidence that I speak of.

The Evidence of Escorting

[46] There really is no issue S.D. was an escort. The defence readily concede it. The escort ads, the hotel records, the pens taken from the hotels, etc. confirm it.

[47] The defence submits that S.D. independently offered sexual services with no significant participation or encouragement by Mr. Myers. For example, the defence points to S.D.’s escort ads where she wrote that she was an independent escort. I attach little weight to this. I accept S.D.’s explanation for doing so. She testified that potential customers sometimes asked. They preferred an independent escort as opposed to one having a pimp. Saying she was independent stopped such questioning. That is why she advertised herself as independent though she was not. This makes sense to me. This does not adversely affect my acceptance of S.D.’s testimony.

The Escort Advertising

[48] The escort advertising deserves a closer look. Numerous sexual services ads posted online under the name Angelica Snow were put into evidence. Angelica Snow was the name S.D. used as an escort.

[49] An important aspect of the ads is not just the content, but also the locations and rough timing of when the ads were posted. An analysis of these ads helps confirm S.D.’s testimony.

[50] Early ads offering S.D.’s sexual services contained the telephone number of Mr. Myers as the contact number to call to get sex. This number is the WhatsApp number found in the cellular phone of Mr. Myers (I will explain later how I have come to this conclusion). S.D. was not sure about the exact timing of the first party at Mr. Musara’s place and Mr. Myers’s later recruitment of her, but an early escort ad had a post date of April 6, 2018, which is consistent with S.D.’s testimony. S.D. described how Mr. Myers bought her lingerie. She also received long gloves to hide the cuts from her self-harming. She testified about how Mr. Myers and the other pimp, Roman, took photos of her in the lingerie for the ad. Mr. Myers directed her poses for the photos. Mr. Myers filled out the content of the ad. The photos of S.D. in the escort ad confirms the details of S.D.’s testimony. Also found in Mr. Myers’s phone are a description of S.D. and rates for sexual services that are consistent with what is found in the ad. The actual photos used in the ad are found in Mr. Myers’s phone. The place referred to in the ad is Scarborough, consistent with where S.D. said the first two hotels were located. Another ad posted or reposted April 7, 2018, equally is consistent with S.D.’s testimony. All of this evidence strongly confirms S.D.’s testimony. It also independently implicates Mr. Myers directly in arranging her escorting services.

[51] Moreover, the post or re-post dates and locations of other escort ads conform to where S.D. testified Mr. Myers took her to do sex work such as Toronto, Markham, Mississauga, Richmond Hill, Barrie, Ottawa, and London. As well, the cellphone that I find belonged to Mr. Myers has data showing his phone connecting to local WIFI with names that I can reasonably infer belong to hotels. Finally, one app on Mr. Myers’s phone had geolocation information showing he was in Ottawa at the same time as a posting of an ad for S.D. in Ottawa.

[52] This evidence confirms S.D.’s testimony and shows Mr. Myers as very involved in her escorting.

The Finding of the Firearms and Taser

[53] In addition, the finding of the firearms and taser owned by Mr. Myers strongly confirms the evidence of S.D.

[54] S.D. testified that Mr. Myers obtained two firearms and a taser. The first firearm only shot blanks. As a result, he obtained a real firearm with bullets. Mr. Myers showed her how to load the gun. S.D. gave detailed descriptions of the two guns. She testified about the location where he kept them; one in the basement of his home, the other in the glove compartment of his car. S.D. testified that one time he in jest pointed the handgun at her and pretended to shoot her. Later, Mr. Myers got a taser for her to use for her own protection as she continued the sex trade later on when Mr. Myers was no longer coming and staying with her at the hotels.

[55] On October 12, 2018, S.D. testified that she and Mr. Myers drove to a Shoppers Drug Mart in Mississauga. S.D. was driving. Mr. Myers was going to drop off some groceries for Shanique Baker, the mother of his son, Elijah. S.D. waited in the car while Mr. Myers did this. S.D. testified that she heard something. Mr. Myers came quickly back to the car and grabbed a handgun from the center console. S.D. heard shots fired. Mr. Myers rushed back and yelled at her to drive. S.D. did but she was so panicked, she could not drive properly. Mr. Myers took over driving. They drove back to the Sandman Hotel where S.D. was working. Mr. Myers was upset and panicking, trying to dispose of the drugs that were there. S.D. was left alone in the hotel room with the drugs and the handguns. She testified that she was terrified and was crying.

[56] It is here that, at trial, S.D. testified about Ms. Browne coming to pick her up and driving her to Lake Couchiching to dispose of the guns and taser. S.D. also testified that she threw out the cocaine from the moving vehicle when they drove along a road in a forested area. Of course, S.D. was thoroughly cross-examined on her prior sworn statement to the police on March 5, 2019, when she said it was a male pimp who picked her up and drove her.

[57] The Agreed Statement of Fact between the parties proves the following:

On October 12, 2018, an alleged shooting occurred around 8 pm in the parking lot by the Shoppers Drug Mart located at 5425 Creditview Road, Mississauga, Ontario. The complainant in that matter is Shanique Baker.

At 1:40 am on October 13, 2018, Stephan Myers attended 12 Division of the Peel Regional Police, 4600 Dixie Rd, Mississauga, Ontario to turn himself in.

He appeared in WASH court at the Peel Courthouse on Saturday, October 13, 2018. His bail hearing was adjourned to October 15, 2018, and then again to October 17, 2018. Mr. Myers remained in custody from October 13, 2018 – June 11, 2020.

On March 21, 2019, S.D. went to Lake Couchiching in Orillia with members of the Toronto Police Service. The water was frozen at the time. S.D. pointed out where she had discarded the two firearms and taser.

On May 13, 2019, a dive team with the Toronto Police Service Marine Unit returned to the lake and were able to dive and search for the items. Police recovered two handguns and a taser in the same location that S.D. had pointed out where she had discarded the firearms and taser.

The firearms were submitted for analysis. According to police, one of the firearms shoots blanks. The other firearm was identified as a restricted .22 caliber semi-automatic handgun. The Centre for Forensic Sciences has confirmed that it is linked to the casing located at the scene of the shooting for which Mr. Myers is charged.

[58] In assessing this evidence, I am mindful of the evidence of Ms. Browne. She is a close friend of Ms. Myers-Ellis and lived at 48 Drake Drive. She is also admittedly close to Mr. Myers. She knew S.D. who lived in the basement with Mr. Myers. Until Mr. Myers’s arrest, she hardly spoke with S.D. Afterwards, she testified that they became closer.

[59] Ms. Browne corroborates that she picked S.D. up in Mississauga and drove S.D. up to Lake Couchiching. It was around the time of the shooting as she became aware of the allegations through Ms. Myers-Ellis. This fact supports S.D.’s testimony. However, Ms. Browne does not corroborate S.D. about her throwing the guns and taser into the Lake Couchiching. Ms. Browne testified that she drove S.D. up to Orillia to go see S.D.’s mother. They stopped off at the lake since they were unable to reach her mother and because S.D.’s dog had to relieve itself. She drove S.D. back to Barrie without seeing her mother. Ms. Browne denied that S.D. threw any drugs out the window.

[60] The Crown submits that Ms. Browne did exactly what S.D. testified to. That is, she drove S.D. up to help her dispose of the guns, taser, and drugs. The Crown argues that once Mr. Myers was arrested, the family including his mother and brother, discussed the matter with Ms. Browne. Legitimately, in order to formulate a plan to bail him out. Illegitimately, to formulate a plan to dispose of the weapons.

[61] The defence argues that S.D. went with Ms. Browne to Lake Couchiching without the guns and taser to scope out the area to find a place to later throw out the weapons by herself. Before going up there, they stopped at 48 Drake Drive where S.D. could have left the weapons. After returning from the trip to Orillia under the guise of going to see her mother, S.D. later went on her own to Lake Couchiching to throw away the guns.

[62] This defence theory does not make sense to me. First, if S.D. wanted to secretly throw away the weapons in the lake, there is no reason to get Ms. Browne involved if her purpose was to check out the lake. S.D. was familiar with the area and could have done this on her own. Involving Ms. Browne risked later detection by including a potential witness to her plans without any benefit in doing so. Second, I accept that S.D. was worried about having the guns and drugs on her. She would want to dispose of them quickly since each minute she had them, created the danger of discovery. In this context, it makes no sense for S.D. to get Ms. Browne to drive her to Orillia under the pretext of seeing her mother when disposal of this incriminating evidence was pressing. Third, I accept S.D. was shocked and distressed about the shooting. While she could have gotten rid of these items herself, it makes sense that she might need the support and encouragement of someone else to help her.

[63] Additionally, I had difficulty in accepting Ms. Browne’s testimony about this. She was honest and straightforward regarding other matters. But questioning by the Crown on her actions involving S.D. during the aftermath of the shooting incident, diminished her credibility.

[64] First, the data extracted from Ms. Browne’s phone shows that on October 12, she was actively involved in communicating with Ms. Myers-Ellis and Mr. Myers’s brother. I cannot place a lot of weight in Ms. Browne’s evidence about the events that were happening at that time. Her purported recollection was poor. Beyond that, her answers were not credible. Her inability to recall certain messages was not believable. Ms. Browne’s testimony that S.D. did not seem to know what was going on and was trying to get ahold of Mr. Myers, is contradicted by the messages. Ms. Browne’s testimony about staying the night of the shooting at a friend’s is not consistent with a text where she put this meeting off due to an “emergency” at home. There are other texts on Mr. Myers phone that showed concerted efforts to deal with this emergency involving Mr. Myers. Ms. Browne’s insistence that she never knew S.D. was a sex trade worker is not consistent with the messages that show Ms. Myers-Ellis discovered this fact after the shooting incident. It is improbable given their close relationship that Ms. Browne would not have found out from her. As well, her purported ignorance of the nature of S.D.’s work is not in keeping with the messages that conveyed Ms. Browne’s concern for S.D.’s welfare when she went out for her sex work.

[65] Second, while Ms. Browne’s testimony about driving S.D. to see her mother in Orillia is not inherently implausible, I find that this is too opportune. Moreover, this whole issue of S.D. trying to go to her mother’s is not consistent with S.D.’s lack of a relationship with her mother at the time and S.D.’s continued residence at 48 Drake Drive thereafter.

[66] At the end of the day, I do not accept Ms. Browne’s testimony that S.D. did not throw the guns and taser into the lake. I prefer the evidence of S.D. on this point. I recognize the weaknesses in S.D.’s evidence on this; it is impossible to ignore the inconsistent statement of the pimp. For that reason, I cannot fully accept S.D.’s account. However, given the weaknesses in Ms. Browne’s testimony, her testimony does not pose an obstacle to my partial acceptance of S.D.’s testimony about disposing of the guns. It is far too coincidental that Ms. Browne would drive S.D. to Lake Couchiching if what S.D. testified to was not true.

[67] S.D.’s testimony of how she came to have the guns makes sense. Given who S.D. was at the time, her background, and her social circle, it is implausible that she would have gotten these guns for herself. Her account of the taser being obtained by Mr. Myers for her protection also makes sense. The disposal of the weapons after Mr. Myers allegedly got angry and recklessly discharged a gun at the mother of his child, further makes sense. Leaving aside the issue of who brought S.D. to Lake Couchiching, S.D. has been honest and straightforward in her account of this. Cross-examination did not impeach this part of her testimony. I accept her testimony on this.

[68] Therefore, the fact that S.D. could lead the police to where the guns and taser were disposed of is entirely consistent with her testimony. It is strong confirmation; both generally and specifically regarding what led up to her disposal of the weapons.

[69] I do recognize that these actions on S.D.’s part implicates her in serious criminal behaviour. I do not fully accept that she was acting out of fear of Mr. Myers and under his control and direction when she disposed of the weapons. Her motive for doing this is more complex. Emotional ties and loyalty no doubt played a part. However, despite her involvement in this serious criminal incident, this does not lessen my belief in this part of her testimony.

[70] She admitted to the police what she had done. She could have simply not have mentioned it. But she did. She also did this at a time when there was no certainty that she would not be charged with criminal offences arising out of this. It was against her self-interest to reveal this to the police.

[71] Of course, the change in her story about the male pimp and Ms. Browne is most troubling. However, after careful reflection, I find this does not detract from the accuracy and honesty of S.D.’s testimony about the general contours of this incident. The confirmation of the shooting incident itself in the Agreed Statement of Facts, the police finding the weapons exactly where she pointed them out, the fact the guns found matched the description given by S.D., and the forensic connection between one firearm and a casing at the scene of the shooting, alleviates my concerns.

[72] Thus, this helps confirm S.D.’s testimony about Mr. Myers possessing these firearms, the shooting incident, and S.D.’s subjective fears of Mr. Myers. In short, this evidence significantly advances the Crown’s case against Mr. Myers in more than one way.

The Digital Data from Mr. Myers’s Cellular Phones

[73] Two cellular phones were seized from 48 Drake Drive where, up until his arrest, Mr. Myers lived with S.D. in the basement of his mother’s home. One phone was found in his mother’s bedroom. The police referred to this as “device 2”. There was a social insurance card of Mr. Myers’s that was also found in the bedroom. The other phone was found in the basement. The police referred to this phone as “device 17”. I find, based upon what is found in both phones, that these two phones belonged to and/or were primarily used by Mr. Myers. This is based upon the user accounts, contact information, call logs, and the content of some of the messages in these two devices.

[74] I find that significant weight can be placed in the digital data extracted from the two phones both as independent evidence relevant to the charges and as evidence confirming the testimony of S.D.

[75] In device 2 there are relevant communications. S.D. is at times referred to as “Money”. S.D. testified that this was Mr. Myers’s nickname for her. There are several messages between S.D. and Mr. Myers. Some show that S.D. is involved in sex work and Mr. Myers was at a hotel, aware she was involved in sex work and knowingly participating in it. In one message, S.D. is telling Mr. Myers she wants to post an ad and needs a card, likely a credit or debit card, from Mr. Myers. In another message, she states that she is sick, and it is hard to do the sex work. In a message to Mr. Myers, S.D. references “we” have an outcall. In another, S.D. checks in with Mr. Myers about booking a hotel in Mississauga and not in Barrie. In yet another, she asks about whether to go to the Sandman Hotel the next day and Mr. Myers approves. In one chat, she is trying to find some blonde women to work for Mr. Myers. S.D. testified that Mr. Myers wanted her to find other sex workers to work for him. In another series of messages, S.D. is upset since it appears Mr. Myers got “wasted” and they were unable to go to Toronto as planned. S.D. claims she is losing money because of Mr. Myers and Mr. Myers strikes an apologetic tone. On the phone, there are also indications of e-transfers sent by Mr. Myers to S.D. S.D. testified that while most of the income from the sex work was in cash, she received monies from Mr. Myers to pay for things like the hotel room. In one text, S.D. makes a reference to being desperate to make money for “us”. In another, she references a meeting with a client for an hour and that she would check in with Mr. Myers later.

[76] On device 17, there is note created on April 5, 2018, with prices for sexual services and a description for Angelica. These prices are consistent with the prices in the SkiptheGames ad dated April 7, 2018.

[77] There are relevant messages between Mr. Myers and S.D. S.D. is referred to as “Moolah” in the phone. There is a message referencing a woman that S.D. testified that she was trying to get to work for Mr. Myers. This again is consistent with S.D.’s testimony about recruiting other women for Mr. Myers. In another, S.D. refers to paying for a hotel room and saying Mr. Myers needs a new card. S.D. testified that Mr. Myers would get his own room key card as he regularly came to get the money earned by S.D. In another message, she asks for toiletries from Mr. Myers. S.D. testified Mr. Myers would bring such things for her when she was working. In another, Mr. Myers asks her how much money she made today. He then asks her how many appointments she had later. In another communication, S.D. states she is cranky as she is not getting calls. Mr. Myers tells her to take some pictures. S.D. states she is on it. Mr. Myers replies that’s my money. Regardless of how one interprets his use of “money” whether he is referring to S.D. or cash, it is clear he is encouraging her sex work. In another set of messages, Mr. Myers is upset because S.D. got double booked. In another message, S.D. states a client wanted some drugs and Mr Myers would be able to do so in 45 minutes. This is consistent with S.D.’s testimony that Mr. Myers would have her sell his cocaine to clients. Another time, S.D. replies a client is paying her $2,500 until midnight. Mr. Myers is pleased and states “Yes. My money”.

[78] Then there is one significant series of messages. On September 5, 2018, S.D. texts Mr. Myers for help saying that a client had bought an hour but expected two “shots” referring to ejaculations. Mr. Myers asks if S.D. told him two. S.D. replies no, never. Mr. Myers then directs her to give him two and make him come. S.D. then replies that the client wants his money back. This upsets Mr. Myers, and he says no. Then, he messages her to take her taser out.

[79] I agree with the Crown submission regarding this set of messages. Clearly Mr. Myers is not in the vicinity to help. Mr. Myers is not thinking about S.D.’s safety; he is coercing and pressuring S.D. By telling her to take out her taser on the client, he is oblivious to her safety. The man could overpower her, become violent, and even use the taser on her. He did not tell her to give the man his money back. Mr. Myers then in the messages blames it on her drinking. S.D. defends herself by saying it’s not her fault. Looking at this exchange, this not only confirms how S.D. describes her relationship was like with Mr. Myers, this is also independent evidence relevant to exploitation and Mr. Myers’s intent to exploit S.D. In this incident, he clearly intends in his messages to her to exploit or facilitate her exploitation. He is heedless about her safety. Relevant to the objective test for exploitation, a reasonable person in S.D.’s shoes would feel that Mr. Myers cared more for the profit from the sexual services she provided than her physical or psychological safety. Moreover, this exchange is consistent with S.D.’s testimony about how Mr. Myers got upset with her on another occasion where she was robbed by a client.

[80] The defence submits that there are not a large number of messages relied on by the Crown. This is true, but as the Crown pointed out the call logs show consistent calls between S.D. and Mr. Myers. They could well have done a lot of their communication by voice rather than messaging. In addition, the defence submits that the messages do not show threats, demands for quotas, or more overt exploitative communications. This too is true. But what exists is not innocent. They show active involvement and interest on the part of Mr. Myers in S.D.’s sex work. They show direction and influence. They are, in the circumstances, very probative evidence.

[81] In sum, even with the credibility and reliability issues that exist with S.D.’s testimony, I conclude that this digital evidence, along with the other confirmatory evidence, restores my faith in S.D.’s testimony when it comes to her allegations against Mr. Myers.

(c). Conclusion on Human Trafficking

[82] Having made these findings, I now turn to the application of the law to the facts. I emphasize here that the mere fact Mr. Myers was S.D.’s “pimp” does not make him automatically guilty of the offence. The Crown must still prove all the essential elements beyond a reasonable doubt.

[83] Regarding the first element of the offence, the actus reus, I find the Crown has proven beyond a reasonable doubt that Mr. Myers recruited S.D.

[84] About two weeks after the party, S.D. returned to Mr. Musara’s residence at his invitation, likely to do some cocaine. While there, she met Mr. Myers. Mr. Myers showed her a large chunk of money and asked how she would like to make that kind of money. He told her she could have all the liquor, cocaine, and designer clothing that she wanted. He was vague about how the money would be earned, but S.D. knew there were strings attached. She was excited and the offer seemed like paradise to her. Mr. Myers came back a couple of days later and took her to a motel with another pimp, Roman, and his sex worker, Chanel. Mr. Myers gave her cocaine. Initially, Mr Myers never charged her for the cocaine. Mr. Myers got her lingerie from a sex store. He and Roman took photos of her in the lingerie and posted an online ad. Mr. Myers used his telephone number. He made the arrangements with the client. S.D. saw her first client that night. Mr. Myers was on speaker phone and muted. Mr. Myers and S.D. agreed to a 50/50 split on the money received from the client after she paid him back for the hotel and clothing. She gave him the first $400 she earned. She thereafter continued to give him money from her sex work.

[85] I accept S.D.’s testimony on this. Her testimony was coherent, straightforward, and consistent. It is plausible and in keeping with the rest of her testimony about how her relationship with Mr. Myers developed. S.D. did not suddenly without any reason start into the sex trade. She was not substantially challenged in cross-examination on this series of events. I reject the suggestion that her use of cocaine on the occasion where Mr. Myers recruited her made her evidence unreliable. This was early on in her drug use and her account of this meeting was clear and coherent. Any inconsistencies on S.D.’s account of this introduction is minor. Her testimony, that Mr. Myers did not, at first, outright suggest to her that she would earn this money by sex work, has a ring of truth to it.

[86] I also note that her testimony about Mr. Myers showing her a large wad of cash is supported by the videos taken later in time of Mr. Myers throwing a large quantity of Canadian and American denomination bills of various sorts. He was apparently celebrating his birthday. These videos were found on his phone. I find that it was Mr. Myers voice narrating the videos. Mr. Myers’s behaviour on this occasion is consistent with him having the same large amount of cash and taking pride in showing it as described by S.D.

[87] Also, S.D. testified that at the first hotel, an associate of Mr. Myers named Roman, and his “girl’, Chanel, came with them. These names were found in Mr. Myers’s phone.

[88] Moreover, S.D. testified how Mr. Myers and Roman took photos of her for the advertisement that was posted for the sex work. As explained above, the sex ads and phone number of Mr. Myers used in the ads, confirm S.D.’s evidence and are independent evidence connecting Mr. Myers. The same can be said of the photos used in the ads being found in Mr. Myers’s phone.

[89] I appreciate that Mr. Musara did not confirm S.D.’s narrative of how Mr. Myers came to recruit her at his place. I do not accept his testimony on this. First, he may simply not recollect this given the passage of time and the circumstances where something like this, given the parties and gatherings that regularly occurred at his home, may not have stood out in his memory. Second, he may not have been in a position to have observed or overheard this interaction between Mr. Myers and S.D. S.D. is not sure where Mr. Musara was when she had this conversation with Mr. Myers. Third, Mr. Musara may be conveniently denying this to help his friend, Mr. Myers. Regardless of the exact reason, Mr. Musara’s testimony is no obstacle in my accepting S.D.’s testimony on this.

[90] I also find that the Crown has proven the actus reus in other ways. Mr. Myers transported and harboured S.D. He decided upon the hotels and sheltered her there, some in cities outside Barrie, such Toronto and Windsor. At the beginning, he drove her to these places, and he obtained the rooms. I accept S.D.’s testimony on this. Other evidence confirm that she worked in these places. Some of the text messages shows Mr. Myers’s continued involvement as S.D. offered her sexual services from the hotels.

[91] Finally, Mr. Myers exercised control, direction, and influence over her movements. I accept S.D.’s evidence about this including evidence about Mr. Myers’s initial involvement as S.D. started in the sex trade, his decision as to the hotels to use, his collection of the money earned from her at the hotel, and his direction to her that when she was not making enough money that she would have to agree to certain sexual acts that she did not feel comfortable with.

[92] In establishing the actus reus of the offence through control, direction, and influence over movement, it is necessary to go beyond what Mr. Myers did but to also assess the nature of the relationship between S.D. and Mr. Myers and the impact of Mr. Myers’s conduct on S.D.’s state of mind: R. v. Ochrym, 2021 ONCA 48, at paras. 29-33; R. v. N.S., 2022 ONCA 160, at para. 105. When I do, I am satisfied that the actus reus of the offence has been established in this way as well.

[93] The defence argued that the Crown has proven nothing more than that S.D. and Mr. Myers had a boyfriend/girlfriend relationship. I do not question that there may have been an emotional bond between the two; at least from S.D.’s perspective. However, that was not the primary nature of the relationship. Bluntly, Mr. Myers was indeed S.D.’s pimp. When the totality of the evidence that I accept is assessed, the relationship was one characterized by a power imbalance and exploitation (here I use the term as it is used in common parlance). S.D. was a self-harming 18-year-old high school student with little lived experience. Mr. Myers was 27-year-old with experience in the drug trade and with a group of friends and associates who were involved in illegal activities. She was recruited into the sex trade; something she knew little, if anything, about. She left home to be with Mr. Myers. She was given direction and guidance by Mr. Myers. Initially, he posted the ads and received calls from clients. He supplied her with cocaine. He was aware that her use of intoxicants became greater with time. The drugs were initially a lure to get her involved in the sex trade and later to keep her involved. He provided her with protection. I do not say I accept everything S.D. has said about her relationship with Mr. Myers, but I am sure of this core and essential nature of her relationship with him. This supports proof of the actus reus of the offence.

[94] I also have no doubt that Mr. Myers was in a position or had the ability at a minimum to influence and direct her movements. At times, he could and did control it. Even though S.D. was not without free-will and eventually did a lot of the sex work without Mr. Myers’s intervention, I am satisfied beyond a reasonable doubt that he had the ability and did exercise control, direction, and influence over her movements. I further accept S.D.’s evidence about her state of mind and how his acts affected her movements. She was in fact controlled, directed, and influenced by Mr. Myers.

[95] In R. v. Gallone, 2019 ONCA 663, at para. 50 the Ontario Court of Appeal described the nature of the relationship the offence is meant to target:

In my view, the essence of what the Court of Appeal of Quebec adds here is that all these residual terms - "exercises control, direction or influence" - evoke a scenario in which a person, by virtue of her or his relationship with the complainant, has some power - whether physical, psychological, moral or otherwise - over the complainant and his or her movements. As stated in A Handbook for Criminal Justice Practitioners on Trafficking in Persons, (Ottawa: Department of Justice, 2015), which was developed by the Federal/Provincial/Territorial Working Group on Trafficking in Persons, these residual terms characterize "the nature of conduct in terms of the relationship between the accused and the victim in relation to the victim's mobility": at p. 20. In other words, by virtue of the relationship between the accused and the complainant, the accused was in a position or had the ability to control, direct, or influence the movements of the complainant. However, as already stated, the terms "control", "direct" and "influence" involve different degrees of coercion:

[96] The relationship between Mr. Myers and S.D. was exactly that kind of a relationship.

[97] In terms of the third element, I find that the Crown has proven beyond a reasonable doubt that Mr. Myers caused S.D. to provide or offer to provide sexual services. This is clear from my examination of the evidence regarding recruitment and control, direction, and influence. Moreover, as my analysis on exploitation will show, Mr. Myers continued to cause S.D. to provide and offer to provide sexual services even after he went into custody.

[98] The fourth element is that Mr. Myers caused S.D. to provide or offer to provide sexual services by engaging in conduct that in all the circumstances could reasonably be expected to cause the other person to believe that their safety would be threatened if they failed to provide or offer to provide sexual services. This is an objective test. For the following reasons, I find that the Crown has proven this beyond a reasonable doubt.

[99] There is no evidence that Mr. Myers ever assaulted S.D. However, S.D. was firm that Mr. Myers threatened her; threats that were directly tied to S.D. failing to provide sexual services. I find that Mr. Myers did make these threats. There is significant objective evidence proving that he caused S.D. to provide sexual services by engaging in conduct that could reasonably be expected to cause S.D. to believe that her safety, both physical and psychological, would be threatened if she failed to provide those sexual services.

[100] S.D. testified that Mr. Myers threatened to kill her if she ever left escorting and that she would have to find a replacement for herself if she did. I do not find these threats contradictory. Taking the whole context into account, Mr. Myers is threatening S.D with physical harm if she left him and stopped escorting for him. In almost the same breath, he is threatening S.D. to find someone else if she dared to do so. As well as a threat, this is coercion to get S.D. to be a party to the offence of procurement. S.D. gave evidence confirmed by texts, that Mr. Myers wanted her to recruit other women. No doubt, a reasonable observer would believe that not only her physical safety would be endangered if she left Mr. Myers, but also, she would suffer psychological harm. Given the nature of the threat, even if she was not physically harmed, a reasonable person would believe that they would be subject to more threats, harassment, or intimidation if they failed to provide sexual services or find a replacement.

[101] I accept S.D.’s testimony about this. This was not undermined in cross-examination. It is not something that S.D.’s memory would fail her on. I find this part of her testimony reliable. It is consistent with the circumstances facing S.D. Mr. Myers had a vested interest in her. It makes sense that he would make such a threat to make sure S.D. continued working for him. It is not inconsistent with his also relying on her emotional attachment to him. It is consistent with the fear that she expressed when she left Mr. Myers and she called the police. It is consistent with her actions that supports this subjective fear. When she went to remove her property from 48 Drake Drive on February 24, 2019, she took the step of asking for a police escort. She did not tell Ms. Browne or Ms. Myers-Ellis the truth about why she was leaving. Though she gave her contact number, it was one she could readily change. She then went to a shelter. When she thought someone sent by Mr. Myers was videotaping her, she instigated a call to the police and then took the significant step of going to the HTET. During her interview with the officers from the HTET, she revealed her involvement in serious crime without getting assurances she would not be charged. All of this speaks volumes about her genuine fear of Mr. Myers. In my opinion, this fear was also partially the reason why S.D. continued in sex work after Mr. Myers went into custody.

[102] Along with the threats, it was reasonable for S.D. to take these threats seriously given that Mr. Myers possessed two guns. One only shot blanks but the other was a functioning firearm. He showed her how to load it. She testified that she was terrified of the gun going off accidentally. This is not a case where the complainant is fearful because of a belief that the accused had a gun. Here, S.D. knew he did. Mr. Myers made her intimately familiar with the lethal weapon that he had. He had her handle it. He showed her how it was loaded. In addition, while Mr. Myers was joking, he did point the gun at her and pretended to shoot her. Objectively, any person would be concerned about someone who had such an interest and facility with firearms. They would fear for their safety. Reasonably, S.D. would know that Mr. Myers had the ability to obtain weapons-including a taser for her- and was a person who wanted to own and potentially use such weapons. Objectively, this would only heighten her fear of harm if S.D. failed to provide sexual services.

[103] Then there is the shooting. I find that although Mr. Myers soon went into custody after the shooting, this remains a relevant consideration. I accept S.D.’s testimony that Mr. Myers wanted her to continue working in the sex trade. He did not severe this connection to her when he was in jail. He wanted to maintain it. He was only in pretrial custody. It makes sense that he would not wish to give up this lucrative way to make money. Mr. Myers still influenced S.D.’s movements even though he was in jail. He played on her emotional attachment to him and their prior history to influence S.D. to continue to provide sexual services. I accept S.D.’s account of the conversations she had with Mr. Myers in custody. Although sex work was likely not directly mentioned, a reference to them going to Montreal by Mr. Myers in these talks while he was in custody, could only be a suggestion by Mr. Myers that he would take her to that city for her to provide sexual services. In short, Mr. Myers’s acts of exploitation continued even when he was in custody.

[104] While S.D. may not have actually seen what transpired, her belief that Mr. Myers fired off the handgun during an argument with his ex-partner, the mother of his child, was reasonable. This also significantly supports the objective assessment of whether his acts would reasonably cause S.D. to fear for her safety if she failed to provide sex services. It made his threats to S.D. objectively more serious.

[105] Consideration of other factors mentioned in Sinclair also support the finding of exploitation under s. 279.04.

[106] The relationship between S.D. and Mr. Myers was a complicated one. But there is no doubt that Mr. Myers had power over her. He used her desire and need for drugs. To lure her into sex work, he told her that doing such work would provide her with all the drugs that she would want. At the beginning, Mr. Myers gave cocaine to her. At no cost. He was aware of her increasing need for and addiction to cocaine. Then, as her addiction worsened, Mr. Myers refused to pay for her drug use. However, he did leave drugs with her at the hotel rooms both for her own use and to sell to clients. His actions with respect to supplying her with drugs was manipulative. Her drug use and his provision of drugs, in the totality of the circumstances, amounted to a relationship of trust and power which Mr. Myers used to exploit her: R. v. Antoine, 2019 ONSC 3843, at paras. 189 - 193

[107] He used her emotional attachment and dependence to him. He offered her protection when she provided sexual services. He gave her a taser for her use. He picked up the money and then gave her money for her expenses. He brought her toiletries and food while she worked. He drove her to different cities. He offered her a home in the basement of his mother’s house. He provided influence and direction. All of this could only reasonably have made S.D. more attached and dependent on him.

[108] Furthermore, the relationship between Mr. Myers and S.D. was a close one over an extended time. I accept that from outward appearances, theirs was intimate enough to look like a boyfriend/girlfriend relationship. Indeed, I can accept that in some respects, there was an element of that. Objectively speaking, I can see how S.D. came to trust him. However, in the circumstances of this case, this relationship heightened Mr. Myers’s power and authority over S.D. Mr. Myers abused that power, and authority. For instance, I accept that Mr. Myers got angry with her and blamed her when she was robbed by a client. I accept that his direction to her when he told her not to pay back a disgruntled client and use the taser instead could have potentially put her in danger. Such conduct are the hallmarks of an abusive relationship.

[109] Mr. Myers used the essential dynamic of their relationship to coerce S.D., emotionally and psychologically, to offer sexual services. In my finding, this did not end after Mr. Myers went into custody. They maintained contact and an emotional connection while he was in jail. S.D. continued to live in the basement of his mom’s home. S.D. paid rent to her. S.D. believed that she was to continue working in the sex trade for both their benefits while he was in custody.

[110] S.D. was vulnerable. At the time of recruitment, she was young. She was self-harming. Mr. Myers knew that as he bought her long gloves to hide the marks. She had just started taking prescription medication for anxiety. She had been gang sexually assaulted at a party two weeks prior to his recruitment of her. She was openly impressed with the amount of money sex work could bring to her life. Mr. Myers traded on that naiveté and desire for a better lifestyle in his initial meeting with her. She quickly became addicted to cocaine. At times, she drank to excess. Mr. Myers had her disconnect with her family, friends, and her social media ties. She became isolated and dependent on him. In these circumstances, her belief that she would be harmed by Mr. Myers if she left the sex trade is more reasonable.

[111] Mr. Myers also exercised direction, control, and influence over her movements. He recruited her. He initially directed her involvement in the sex trade. He influenced her over the nature and the location the sexual services were provided. Initially, he did the advertising of the services. He would drive her to the hotels or give her the use of his car for her to do that. He would accompany her to some out-of-town locations. He got her food and supplies for her use while she worked. He received at least 50% of the benefits. He would pick up the monies from her at the hotels. He would check in on her. He would get a room card for the hotels she was staying at. Some deception was used as S.D.’s split of the proceeds diminished when over time, Mr. Myers had her pay for her own cocaine use and hotels. Mr. Myers wanted her to recruit other girls for him.

[112] The use of the word "safety" in itself means more than a trivial interference with either physical or psychological well-being. The assessment here is an objective one: could Mr. Myer’s conduct be reasonably expected "to cause [the complainant] to believe that her safety was threatened." I find that the Crown has proven this beyond a reasonable doubt.

[113] Returning to the second element of the offence, from the fact of exploitation, I find it to be a relatively straightforward analysis that the Crown has proven beyond a reasonable doubt that Mr. Myers intentionally committed the actus reus. In addition, he did these acts with the intention of exploiting and facilitating the exploitation of S.D.

[114] When assessing proof of the mens rea, the whole period in which the actus reus is committed should be considered. Put another way, I should not just assess discrete acts such as the recruitment in determining whether the Crown has met its onus. The allegation of human trafficking did not begin and end with the recruitment. The Crown has relied upon the various acts of recruiting, transporting, harbouring and controlling, directing, and influencing S.D.’s movements. Thus, all of the relevant evidence during this time period is material to assessing proof of the mens rea.

[115] In my opinion, looking at the whole of the evidence, Mr. Myers intentionally made the threats, did the acts of recruitment, transporting, harboring and controlling, directing, and influencing, with the intention to exploit her. Simply put, Mr. Myers intended to keep S.D. working for him and reaping the gains from her work. He wanted her to fear for her physical and psychological safety to ensure that.

[116] In conclusion, Mr. Myers is guilty of human trafficking.

2. Count 2: Receiving Material Benefits from Human Trafficking

(a). The Offence under s. 279.02(1)

[117] Section 279.02(1) makes it an offence to receive a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of the offence of human trafficking. No exemptions or exceptions are provided.

[118] The guilty act is the receipt of a financial or other material benefit that is obtained directly or indirectly derived from the commission of the offence of human trafficking. The prohibited conduct of human trafficking, therefore, must have occurred. The guilty mind is the intention to receive that financial or other material benefit knowing that it is from the offence of human trafficking: R. v. Antoine, 2019 ONSC 3848, at para. 28.

(b). Analysis of the Evidence

[119] Given my assessment of the evidence above, I have accepted S.D.’s evidence that Mr. Myers committed the human trafficking offence against her. He obtained financial benefits from her. He knew the source of the income. Finally, he knew that the benefit was obtained by or derived from the commission of the offence of human trafficking. Indeed, it is impossible to conclude otherwise since it is Mr. Myers who did the acts with the requisite intention that amounted to the offence of human trafficking. Therefore, the Crown has proven all the essential elements of this offence beyond a reasonable doubt.

3. Count 3: Procuring

(a). The Offence Under s. 286.3(1)

[120] The prohibited act of the procuring offence in s. 286.3(1) can be committed two ways:

1. Procuring a person to offer or to provide sexual services for consideration; or

2. Recruiting, holding, concealing or harbouring a person who offers or provides sexual services for consideration, or exercising, controlling, directing, or influencing the movements of that person.

[121] “Procure” is further defined to mean “to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged”: R. v. Deutsch, 1986 CanLII 21 (SCC), [1986] 2 S.C.R. 2; R. v. Joseph, 2020 ONCA 733, at para. 65. Procuring someone to engage in even one act of selling or offering to sell their sexual services is an offence: Joseph, at para. 67.

[122] The second way of committing the act of procuring is where a person, “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”. “Influence” is less coercive than the exercise of direction: Gallone at para. 50. To “harbour” means to shelter: Joseph, at para. 74.

[123] To prove the guilty mind for the procuring offence, the Crown must prove beyond a reasonable doubt that the accused intended to procure a person to offer or provide sexual services for consideration. Alternatively, the Crown must prove beyond a reasonable doubt that the accused intended to do any one of the enumerated acts in relation to a person who offers or provides sexual services for consideration, and the accused acted with the purpose of facilitating an offence under s. 286.1(1).

(b). Analysis of the Evidence

[124] The Crown has proven Mr. Myers committed this offence beyond a reasonable doubt.

[125] Mr. Myers introduced S.D. to the possibility of making money by selling sexual services. But for this act by him, I find S.D. would not have sold the sexual services that she provided. Thus, Mr. Myers intentionally caused S.D. to provide sexual services. On the evening at Mr. Musara’s residence, Mr. Myers by his discussions and by showing her the large amount of cash, caused her to enter into the sex trade. He then transported her to a motel, posted an ad, and introduced her to a client.

[126] There is no doubt, but for his actions S.D. would not have offered sexual services for consideration. There is no doubt he intended to cause her to provide sexual services for consideration. I am certain that both the mens rea and actus reus has been proven beyond a reasonable doubt: Joseph at par. 72.

[127] Moreover, in the alternative, even if actual causation is not established, the Crown has proven beyond a reasonable doubt that Mr. Myers intentionally persuaded or induced S.D. to provide sexual services for consideration: Joseph at para. 73.

[128] While unnecessary, I also find Mr. Myers committed the offence of procuring in many other ways prohibited by the section. He did the actus reus for the purpose of facilitating the offence of obtaining sexual services for consideration. My reasons in relation to human trafficking makes this conclusion self-evident.

4. Count 4: Receiving Material Benefit from Sexual Services

(a). The Offence Under s. 286.2

[129] Section 286.2(1) criminalizes the receipt of a financial or other material benefit knowing that it is obtained by or derived directly or indirectly from the commission of the offence of obtaining sexual services for consideration under s. 286.1(1).

[130] Section 286.2(3) creates an evidentiary presumption that a person who lives with or is habitually in the company of a person who offers or provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services and has committed the offence.

[131] Section 286.2(4) provides exceptions to liability. These exceptions are aimed at eliminating from liability those who, despite receiving of a financial or other material benefit, do so in a non-exploitive or non-parasitic relationship with the person providing sexual services.

[132] Section 286.2(5) creates a number of exceptions to the exceptions in subsection 4, including where the accused uses, threatens to use, or attempts to use violence, intimidation, or coercion in relation to the person from whose sexual services the benefit is derived, procures the person, or provides a drug to the person for the purpose of aiding or abetting that person to offer or provide sexual services for consideration.

(b). Analysis of the Evidence

[133] Like the count charging Mr. Myers with receiving financial or other material benefit knowing that it came from human trafficking, I find that the Crown has proven beyond a reasonable doubt all the essential elements of this offence.

[134] I accept S.D.’s testimony about this. Mr. Myers knew how S.D. earned her money. He received at least 50% of those earnings. It is unnecessary to rely on the presumption in s. 286.2(3).

[135] None of the exceptions in s. 286.2(4) apply. The defence does not seriously argue they do. In any event, based on my factual findings, the exceptions to the exceptions as found in ss. 268.2(5)(a), (b), and (d) would nullify the application of s. 286.2(4).

5. Count 5: Advertising Sexual Service

(a). The Offence Under s. 286.4

[136] The offence of advertising sexual services in s. 286.4 prohibits the advertising of an offer to provide sexual services for consideration. The actus reus of this offence is made out if the accused advertised an offer to provide sexual services for consideration. The mens rea is made out if: (i) the accused intended to advertise the offer; and (ii) the accused knew that the offer was one to provide sexual services for consideration: Gallone at para. 78.

[137] Section 286.5(1) offers immunity from prosecution to those who advertised their own services. This has no application to the case at bar as it only applies to the sellers of their own sexual services and not those who assist them: Gallone at para. 99.

(b). Analysis of the Evidence

[138] I accept S.D.’s testimony that at the beginning of her working for Mr. Myers, Mr. Myers advertised an offer to provide sexual services for consideration. She testified that the initial ads were created and posted by Mr. Myers. Later, S.D. did her own advertising. The ads that Mr. Myers created and posted are significantly different than the ones S.D. did. They are shorter. Their content is different. The photos of S.D. in the earlier ads appear as if they were taken by someone else. I am satisfied beyond a reasonable doubt that Mr. Myers created and posted these ads.

[139] On the whole of the evidence, I am sure that Mr. Myers advertised S.D.’s offer to provide sexual services for consideration.

[140] Regarding the guilty intent, I am satisfied beyond a reasonable doubt that Mr. Myers intended to advertise the offer and that he knew the offer was one to provide sexual services for consideration. There is no other conclusion to be made.

[141] The Crown has proven all the essential elements beyond a reasonable doubt.

6. Count 7: Unauthorized Possession of a Firearm

(a). The Offence under s. 91(1)

[142] Section 91(1) prohibits the possession of a prohibited firearm, restricted firearm, or a non-restricted firearm without being a holder of a licence or a registration certificate for it.

[143] In this case, the only issue is whether Mr. Myers possessed the firearm. Possession requires proof of knowledge and some act of control: s. 4(3) of the Criminal Code.

[144] The indictment in this case does not include possession at the time of the shooting given the dates the offence is alleged to have occurred. It ends before October 12, 2018.

(b). Analysis of the Evidence

[145] S.D. gave a detailed description of the gun. She had the opportunity to handle and observe the gun closely. As noted above, I accept S.D.’s testimony on this. This gun is the same firearm as the firearm that she disposed of and later found by the police divers.

[146] There are hotel records from the Sandman Inn in October ending October 12^th confirming that S.D. stayed there consistent with the narrative she gave about how she ended up with the guns and drugs in her hotel room at the Sandman Inn after Mr. Myers surrendered himself.

[147] I am satisfied beyond a reasonable doubt that Mr. Myers had physical possession of the firearm. He had knowledge and control. It belonged to him until S.D. disposed of them. The Agreed Statement of Facts proves Mr. Myers had no licence or registration certificate for the firearm that is indicated on the affidavits. The agreed evidence is one of the firearms was a restricted weapon. This firearm was retrieved from the lake.

[148] I am satisfied beyond a reasonable doubt that this is one of the firearms that was in Mr. Myers’s possession as S.D. testified to. The Crown has proven beyond a reasonable doubt all the essential elements of the offence.

7. Count 8: Uttering a threat to cause death or bodily harm

(a). The Offence under s. 264.1(1)(a)

[149] Section 264.1(1)(a) makes it an offence to knowingly utter, convey, or cause a person to receive a threat to cause death or bodily harm to any person.

[150] The actus reus is made out if a reasonable person aware of the circumstances in which the words were uttered would have perceived them to be a threat of death or bodily harm. It is not required that the intended recipient of the threat be made aware of it, or they were intimidated by it or took it seriously. The mens rea is made out if the accused intended the words uttered or conveyed to intimidate or be taken seriously. It is not necessary to prove an intent that the words be conveyed to the subject of the threat or that the accused intended to carry out the threat: R. v. McRae, 2013 SCC 68, [2013] 2 S.C.R. 931. Words spoken in jest or in such a manner that they could not be taken seriously, cannot lead a reasonable person to conclude that the words conveyed a threat: R. v. Clemente, 1994 CanLII 49 (SCC), [1994] 2 S.C.R. 758.

(b). Analysis of the Evidence

[151] As I have already found, I am satisfied beyond a reasonable doubt that Mr. Myers threatened S.D. with death. A reasonable person would perceive his threat to kill her if she left him as a serious threat of death. While not required as an essential element of the offence, S.D. was intimidated by it and took it seriously. While Mr. Myers likely did not intend to carry out the threat, the Crown has proven beyond a reasonable doubt he uttered the words to intimidate S.D. and to have her take these words seriously. Given the context of the threat, I find that Mr. Myers said the words to intimidate S.D. into continue working in the sex trade for him.

[152] To be clear, my finding does not include any alleged threat by Mr. Myers pointing the firearm at S.D. This was a joke even according to S.D.

[153] I turn now to deal with the charges against Mr. Musara and Mr. Nolan. I will directly deal with the evidence as the applicable law has generally already been outlined.

D. THE CHARGES AGAINST TAPIWA MUSARA

1. Credibility Findings Regarding Mr. Musara

[154] Mr. Musara testified in his own defence. He denied committing the offences. The doctrine of reasonable doubt applies to my assessment of Mr. Musara’s credibility.

[155] This is a brief overview of Mr. Musara’s evidence. Mr. Musara was a student at culinary school living with roommates at a student residence at 242 Penetanguishene Road in Barrie. He also was a drug dealer who sold cocaine. He first met S.D. when she arrived with Mr. Myers at his place. He believed them to be girlfriend and boyfriend. He learned from the comments she made, the increasing purchases of designer handbags and clothes, and the way she presented herself, that she was a sex worker. S.D. came over alone at times to Mr. Musara’s place. Sometimes with Mr. Myers. She would buy cocaine from Mr. Musara and at times use it in Mr. Musara’s unit. He denied ever knowing that Mr. Myers attempted to try and procure S.D. or have her work for him.

[156] After Mr. Myers went to jail, Mr. Musara agreed that S.D. would come over more regularly and stay overnight at 242 Penetanguishene. By that time, he had moved to a different unit at the address. Mr. Musara testified how S.D. revealed to him some information about the shooting incident including the flushing of drugs into the toilet and the disposal of the guns. Mr. Musara was upset about her flushing the drugs as he could have sold them.

[157] One day, he received a call from S.D. who needed help leaving a place where she was staying with a man named Donte and a girl. Donte had been violent with the girl and S.D. was fearful. Mr. Musara paid for her transportation to his place. S.D. stayed more frequently at Mr. Musara’s after this.

[158] Mr. Musara testified that he rented Airbnb’s in downtown Barrie. He would keep and sell his drugs at these Airbnb’s. Also, he and his friends would use them to party in. He agreed that S.D. would come to the Airbnb’s. Mr. Musara testified that the last time he saw S.D. was at an Airbnb. Her use of cocaine was getting worse and, being a friend, he tried to get her to seek help for her cocaine addiction. He advised her to do so on multiple times in the past. Mr. Musara testified that he cut her off from cocaine. On this occasion, S.D. agreed to go. That was the last time he ever saw her except for a brief Facetime call he had with her sometime later. She had gained weight and looked healthier.

[159] Mr. Musara denied ever sexually or physically assaulting S.D. He denied ever threatening her or trying to encourage her to do sex work. Indeed, he testified that he had told her that she could not “keep selling her pussy forever”. He denied any involvement in procuring or trafficking her into the sex trade. He denied that S.D. ever offered or performed sexual services at Mr. Musara’s place. No permission was ever given to S.D. to do sex work at his place as she testified to at trial. He denied ever asking for or receiving money from her other than for the drugs he sold her or, perhaps, for her share of food they ordered. Basically, Mr. Musara’s position is that he was just a friend and a drug dealer who sold her cocaine and let her stay at his place when she wanted to, just like he did for others.

[160] In my assessment, Mr. Musara’s testimony has some faults. Some things struck me as implausible. For instance, even giving full latitude to the passage of time, Mr. Musara’s testimony that he did not know the last names or the contact information of any of his past roommates at 242 Penetanguishene was a bit too expedient. Likewise, his not asking Mr. Myers about how Mr. Myers got his income and the nature of Mr. Myers and S.D.’s relationship. That said, while this testimony did impair his credibility, I accept aspects of Ms. Andrews’s submission that Mr. Musara’s testimony can only be properly assessed through the social and criminal milieu he was living in at the time; it was not a privileged community of people, like educated professionals, who might be more open about personal details. Thus, it makes sense that Mr. Musara did not inquire into things not of his business. Nevertheless, the blanket denial of knowledge made by Mr. Musara was not entirely truthful. I believe that there is a part of him that simply does not want to identify and involve these individuals. Given his illicit lifestyle, I understand his reluctance, though do not condone his lack of candour. Ultimately, I find that this does not lead me to reject his testimony completely on all issues.

[161] I also find that Mr. Musara knew that Mr. Myers and S.D. were more than just boyfriend/girlfriend. I am not satisfied that Mr. Musara knew all the details, but he knew that Mr. Myers was involved in S.D.’s sex work. Mr. Musara and Mr. Myers were close friends. They also helped each other out in their drug dealings. When Mr. Musara’s supply of cocaine was inconsistent, he obtained drugs from Mr. Myers. It is implausible to me that Mr. Musara would not know more about Mr. Myers dealings with S.D.

[162] The Crown specifically points to text messages on September 5, 2018, where Mr. Myers attempted to set up an outcall with an unknown sex worker at 242 Penetanguishene. This did not happen as Mr. Myers apparently fell asleep and, ultimately, the encounter could not be set up. The Crown submits that Mr. Myers gave 242 Penetanguishene as a place for the outcall because he felt comfortable in having a sex worker there. The Crown argues that this is because Mr. Musara permitted such activities there. It is submitted that this makes Mr. Musara’s testimony that he would not have allowed S.D. to conduct sex work in his home as it would increase the risk of police detection of his drug dealing, a lie.

[163] I do not accept this argument for the following reasons. First, no specific unit was given in the texts. It is possible that Mr. Myers is referring to a different unit than Mr. Musara’s residence. Second, even assuming Mr. Myers meant Mr. Musara’s place, there is no indication that Mr. Musara gave permission or even knew Mr. Myers wanted to bring an escort there. Third, given the party or trap house nature of the premises, it is a reasonable possibility that Mr. Myers would bring a woman over to have sex without telling Mr. Musara the true nature of the encounter. Fourth, it is very different to have a friend bring over a sex worker on a single occasion than to allow a sex worker to regularly work in one’s residence. Finally, these texts were never put to Mr. Musara by the Crown. I find that this evidence did not affect his credibility as detrimentally as the Crown submits.

[164] On the other hand, I find that this series of texts supports my view that Mr. Musara knew more about Mr. Myers’s true relationship with S.D. than he let on in his testimony.

[165] Another fault is Mr. Musara’s insistence that he wanted to moderate S.D.’s cocaine use. I do not question that perhaps, at times, he did say something along these lines to her. S.D. admitted that Mr. Musara told her to go to rehab and said he would withhold her cocaine if she did not - but given that he was aware of her deterioration and was her dealer, his overstated concern about her welfare rings hollow. This negatively affected his credibility.

[166] On the other hand, Mr. Musara was very frank about his drug dealing ways and did not try to minimize it. He could have. But he did not. His narrative of his relationship with S.D. in broad strokes, was coherent and plausible. He did not deny S.D. stayed over at his place. He did not try to pretend he did not know S.D. was a sex worker. Large portions of his testimony were untouched after extensive cross-examination.

[167] Looking at his evidence in the context of the evidence as a whole, I cannot simply reject his testimony completely although I do reject portions of it. Moreover, I cannot use S.D.’s testimony as a sound basis to reject his evidence as I find S.D.’s evidence not sufficiently credible or reliable to do so: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252; R. v. G.(C.), 2021 ONCA 809, at paras. 52 -54.

[168] Additionally, while I have found that S.D.’s testimony can largely be accepted when it comes to the charges against Mr. Myers, my conclusion with respect to Mr. Musara is not the same. There are a number of reasons for this.

[169] First, the Crown submits that if S.D.’s testimony is confirmed vis-à-vis the offences against Mr. Myers, I should find the same when it comes to assessing her testimony against Mr. Musara. Of course, there is some merit to this argument. Legally and logically, corroboration can be used by a trier of fact to support an unsavory witness’s testimony. However, there are limits to this. When it comes to more specific confirmation of S.D.’s testimony against Mr. Musara, it is not the same as it is regarding Mr. Myers. Specific confirmation of the facts allegedly forming the evidentiary strata of the offences against Mr. Musara is lacking.

[170] Second, the nature and length of time S.D. spent with Mr. Myers is different than with Mr. Musara. S.D. had a long, close, and intimate relationship with Mr. Myers. According to S.D., Mr. Musara was her drug dealer and an associate of Mr. Myers. According to Mr. Musara, S.D. was just a friend and a customer of his drugs. S.D. was also far more independent in her sex work during the period when Mr. Myers was in custody and when she was spending time with Mr. Musara. For instance, she worked for a while at the Minx Spa during which she stayed with the establishment’s owner.

[171] Third, when S.D. was staying with Mr. Musara at his place or at the Airbnb’s, her drug addiction was at its worst. Thus, it had the greatest negative effect on her reliability.

[172] Fourth, Mr. Musara testified in his defence. Mr. Musara’s testimony must be considered when it comes to assessing proof of the offences.

[173] Having made this general assessment of Mr. Musara’s credibility, I will begin with the counts alleging sexual assault, assault, and threaten death and bodily harm. My findings on these counts will impact my analysis on the other counts.

2. Count 11: Sexual Assault

(a). Analysis of the Evidence

[174] The essential elements of sexual assault are well-known. Here are my factual findings.

[175] S.D. testified that in February or March 2018, she and her best friend, Jamie, went to a party at 242 Penetanguishene in Barrie. They were picked up and driven there by Mr. Musara, Omar, and a man known as “G.” S.D. drank alcohol, smoked weed, and took a Xanax. She became very intoxicated. She described herself as “very fucked up”. She blacked out. Her recollections are vague and sporadic. She testified that at one point she was in a spare bedroom and recalls being raped by multiple men. She could not remember who they were.

[176] I accept S.D.’s testimony that she was gang sexually assaulted. The few details she can recall are stark and compelling. This includes her recollection that liquor was poured on her privates, that it was extremely painful, and then she was put in the shower. Mr. Musara’s testimony is unreliable about things such as whether S.D. was put into the shower. Given the passage of time, his recollections are not accepted. He denied that he went to pick up S.D. along with Omar and G. This is more plausible and S.D.’s recollection on this might be unreliable. It could well be that he did not accompany the others to pick up S.D. and Jamie since he was the host of the party.

[177] S.D. testified that the next thing she recalls after the gang sexual assault was that sometime in the morning, Mr. Musara sexually assaulted her. Mr. Musara told her to come to his bed and that he would take care of her. She was still “fucked up but not as much”. She was not fading in and out of consciousness. She recalled having a bit of conversation with Mr. Musara. She could not recall exactly what. She was still in pain from the gang sexual assault. Mr. Musara had sexual intercourse with her. She did not want to have sex with him. She complained and was in pain. He disregarded her. He said be quiet. When it was over, he left the room. She recalled going home some point that weekend but was not sure who drove her. She never spoke to anyone at the party about what happened.

[178] I wish to strongly point out that there is no one way that a victim of sexual assault behaves or makes disclosure of the crime. I find nothing odd or inconsistent in S.D.’s behaviour in returning to Mr. Musara’s place a couple of weeks later at his invitation. S.D. was not making good choices at that time. Clearly, she was seduced by the effects of cocaine after being introduced to it at the party. As noted, I have no doubt she was gang sexually assaulted. Even then, she still came back to the very place where that happened.

[179] On the other hand, S.D. was still highly intoxicated at the time of the alleged sexual assault. I appreciate she says she was less intoxicated, but I cannot help but feel her state of mind was not very good. S.D. has been markedly inconsistent about the identities of the persons who committed the gang sexual assault. Indeed, initially she told the police in her March 5, 2019, statement that she was unable to identify anyone at all. Then she identified some attackers. At trial, she could not recall the identities of any except perhaps one. This demonstrates how badly she was affected at the time and more importantly, how her recollections of that evening are not very reliable. Her recollections about other details such as her interactions with G and others that night have also suffered. They too are inconsistent. On the other hand, her memories of the details of the sexual assault by Mr. Musara have purportedly gotten much better and she testified to new and distinct recollections that she had a hard time remembering before. Her testimony on this was significantly different from what she testified to at the preliminary inquiry. In cross-examination, she was impeached several times on her preliminary inquiry evidence. Her memory has shifted a lot. She did not have a good reason for it. The memories she now has are qualitatively different from what she could recall before.

[180] All that said, these two factors, her state of intoxication and the inconsistent details, would not have stopped me from accepting her testimony about the sexual assault. The core of her allegations remained intact after cross-examination. Thus, it is likely that Mr. Musara did sexually assault her like she claimed.

[181] However, S.D.’s testimony does not stand alone on this issue. Mr. Musara testified and denied it. Nothing undermined his testimony on this point. He too could well be telling the truth in his denial. At the end of the day, I find that it is likely that Mr. Musara committed a sexual assault on S.D., but the Crown has failed to prove beyond a reasonable doubt that he did. This reasonable doubt arises because of Mr. Musara’s testimony on this point and some of the issues alluded to in the reliability of S.D.’s testimony.

[182] Thus, he will be found not guilty of this offence.

3. Count 10: Assault

(a). Analysis of the Evidence

[183] In my opinion, the same type of analysis applies to the assault. S.D. testified that Mr. Musara pushed her up against a wall and on another occasion pushed her off a chair. Few details of these assaults were provided by S.D. though she was not specifically undermined in cross-examination. S.D. admitted that she was likely high on cocaine at the time.

[184] Mr. Musara denied ever assaulting her. He was not undermined specifically about this in cross-examination. While I had some issues with his evidence, I have no reason to reject his testimony on this.

[185] Consequently, the Crown has failed to prove this offence beyond a reasonable doubt and there will be a finding of not guilty. Mr. Musara’s testimony, though not fully accepted by me, has raised a reasonable doubt.

4. Count 9: Utter a Threat to Cause Death or Bodily Harm

(a). Analysis of the Evidence

[186] S.D. testified that on one occasion Mr. Musara threatened to pull out her eyelashes and throw her off the balcony.

[187] Mr. Musara denied doing this.

[188] S.D. was unable to give much context to what else was happening when the threat was made. Again, she was using a significant amount of cocaine. Her recollections in general and on this incident was poor. While the detail regarding the content of the threat, has an inherent plausibility, ultimately, given Mr. Musara’s outright denial, I am unable to conclude that this threat has been proven beyond a reasonable doubt. It likely happened, but I am not sure.

5. Count 1: Human Trafficking

(a). Analysis of the Evidence

[189] The law has already been outlined. I now turn to the evidence against Mr. Musara on the human trafficking count.

[190] The Crown position is that there are two routes for liability: (1) Mr. Musara “harboured” S.D. for the purpose of exploiting her after Mr. Myers went to jail; (2) he is a party by aiding and abetting the recruitment by Mr. Myers of S.D. for the purpose of exploiting her.

Liability as a Principal: Harbouring S.D.

[191] The Crown submits that Mr. Musara gave S.D. shelter, at 242 Penetanguishene and at Airbnb(s), in order for her to work in the sex trade. He did so with the intention to exploit her. He knew of her terrible addiction, and he supplied her with drugs after Mr. Myers went to jail. He permitted her addiction to get to its worst point. Along with feeding her addiction, he assaulted and threatened her so she would continue to work. Objectively, if S.D. failed to work, it was reasonable that she believed that she would be physically or psychologically harmed by Mr. Musara.

[192] Regarding the first element of the offence, the Crown has proven beyond a reasonable doubt that Mr. Musara “harboured” S.D. S.D. testified that she stayed at his place. Mr. Musara admitted that she did. There is a difference in their evidence regarding the length of time she stayed at 242 Penetanguishene and an Airbnb and what she did there, i.e., sex work or not. However, on either version, Mr. Musara sheltered S.D. in his residence and at the Airbnb.

[193] However, I find that the Crown has not proven beyond a reasonable doubt the other elements of the offence.

[194] Regarding the alleged threats and assaults by Mr. Musara, I am not sure that they happened. Mr. Musara denied them. S.D.’s evidence is not reliable on this. Mr. Musara’s denials raised a reasonable doubt. Thus, the Crown cannot rely on these acts to prove human trafficking. Put another way, this pillar of their case on this charge has fallen.

[195] The Crown has not proven beyond a reasonable doubt that Mr. Musara harboured S.D. for the purpose of exploiting or facilitating the exploitation of S.D. The focus here is on his state of mind. I conclude this for the following reasons.

[196] First, Mr. Musara denied it. Again, while his testimony has its failings, on this issue, he was not undermined. It raises a reasonable doubt.

[197] Second, S.D. did not claim that Mr. Musara did any of the classic things that pimps do. Mr. Musara was not involved in getting her clients, offering protection, receiving a percentage of her earnings from sex work, transporting her to do sex work etc. S.D. was very explicit that Mr. Musara was not her pimp; Mr. Myers was. Put another way, from the absence of these acts, the proof that he sheltered her for the purpose of exploiting or facilitating her exploitation is much weakened.

[198] Third, at the time Mr. Musara sheltered her, S.D. was quite independent, not only in arranging her own sex work, but in her relationship with Mr. Musara. Both S.D. and Mr. Musara were careful to say S.D. did not “live” at 242 Penetanguishene. She kept her things at 48 Drake Drive. She had access to Mr. Myers’s car to move herself around. Mr. Musara did not drive. S.D. was capable of arranging work at the Minx Spa without even Mr. Musara’s knowledge. S.D. never checked in with Mr. Musara about what she did or where she went. If Mr. Musara’s intent was to exploit her or facilitate her exploitation so she continued to provide sexual services, it is strange that he would permit S.D. to exercise her free will substantially unfettered by any conduct of Mr. Musara.

[199] Fourth, I appreciate that Mr. Musara continued to sell her drugs and feed her addiction while he sheltered her. Sometimes, this can create a position of trust or power that could support a finding of exploitation: R. v. Mohylov, 2019 ONSC 1269, at paras. 38-39. While this could support an argument that selling her drugs along with offering her shelter evinced the intent to exploit or facilitate her exploitation, there is another even more likely purpose: Mr. Musara just wanted to make money by selling her cocaine. In my view, there was nothing in the drug transactions themselves between Mr. Musara and S.D., or their relationship overall, that supports coercion, a taking an advantage of a dependency, or an abuse of trust, power, or authority so that S.D. provide or continue to provide sexual services. Not every drug dealer/buyer relationship amounts to proof of exploitation itself or an intent to exploit or facilitate exploitation within the meaning of s. 279.04.

[200] The Crown has not proven that Mr. Musara had the requisite intention for the human trafficking offence.

[201] In addition, regarding the third element, I have a reasonable doubt whether Mr. Musara caused her to provide or offer a sex service. If anything, based on S.D.’s testimony, at the time Mr. Musara sheltered her, it still was Mr. Myers who was causing S.D. to provide sexual services.

[202] Finally, on the last element, the Crown has failed to objectively prove exploitation. Removing the threats and assaults, whatever else Mr. Musara did, including selling drugs to an addict, in all the circumstances, could not reasonably be expected to cause S.D. to believe that her safety, physical or psychological, would be threatened if she failed to provide sexual services.

Liability as a Party to Mr. Myer’s recruitment of S.D.

[203] I have found Mr. Myers guilty of human trafficking. The Crown submits that Mr. Musara can also be found guilty of aiding and abetted Mr. Myers’s human trafficking. S.D. described Mr. Musara as the leader of the gang. Mr. Musara introduced S.D. to cocaine. Mr. Myers’s proposition happened at Mr. Musara’s place where Mr. Musara had invited her to return. In short, the Crown argues that these acts prove that Mr. Musara aided and abetted her recruitment for the purpose of her exploitation.

[204] Section 21(1) makes a person who aids or abets a person in committing an offence a party to that offence. Mere knowledge of the offence or passive acquiescence is not enough. Some act or omission that assists or encourages the perpetrator is required. In addition, the accused must intend to assist the principal in the commission of the offence: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411.

[205] The Crown has not proven aiding and abetting beyond a reasonable doubt. While Mr. Myers did recruit S.D. at Mr. Musara’s place, there is scant evidence that Mr. Musara even knew about this. He denied it ever happened. Although I have found that it did, it could well be that Mr. Musara was unaware of it as S.D. does not directly place Mr. Musara in the immediate vicinity of her interaction with Mr. Myers. She also never testified that Mr. Musara knew. Inviting her back to his place given the party nature of the residence could have been entirely innocent. Any drugs given by him to her at his place, seems most likely for a recreational purpose. I find that there is little probative evidence that Mr. Musara was even aware that Mr. Myers would try and recruit her into sex work. Any inference that he was is based on circumstantial evidence. I find that the inference is unreasonable. Moreover, there is little probative evidence that Mr. Musara did anything to aid or abet her recruitment. What he did is more consistent with just socially inviting someone who had earlier come to a party back to his place, a premise where people seemed to congregate, hang out, and party. Finally, there is little probative evidence that Mr. Musara intended to help Mr. Musara commit the offence of human trafficking. The Crown suggestion that Mr. Musara along with Mr. Myers were somehow jointly executing a plan to lure S.D. into sex work is speculative. It is also not consistent with the fact that Mr. Myers did not want S.D. to have contact with Mr. Musara and until Mr. Myers went to jail, Mr. Musara did little more than give her cocaine.

[206] The Crown has not proven that Mr. Musara aided and abetted Mr. Myers’s offence of human trafficking.

6. Count 2: Material Benefit from Human Trafficking

(a). Analysis of the Evidence

[207] Given my findings, while Mr. Musara knew the money he received from S.D. came from the provision of sexual services, he did not know it was from human trafficking. I concluded that the Crown has failed to prove beyond a reasonable doubt Mr. Musara himself committed the offence of human trafficking. In addition, I find that while Mr. Musara likely knew Mr. Myers was more than just a boyfriend to S.D., the Crown has not proven beyond a reasonable doubt he knew Mr. Myers was committing the offence of human trafficking against S.D. While Mr. Musara and Mr. Myers were friends, I am not sure that Mr. Musara knew much of the particulars of Mr. Myers’s exploitation of S.D. during the time he was receiving monies from S.D. I again refer to the fact that aside from giving her cocaine and seeing her with Mr. Myers, Mr. Musara had little close contact or dealings with S.D. There is no evidence about what Mr. Myers may have told Mr. Musara about his acts of exploitation of S.D. Mr. Musara’s denial of knowledge, while not totally accepted by me, also raise a reasonable doubt on this issue.

[208] Mr. Musara will be found not guilty of this charge.

7. Count 3: Procuring

(a). Analysis of the Evidence

[209] The Crown submits that Mr. Musara procured S.D. in two ways. First, he harboured S.D. for the purpose of facilitating an offence under s. 286.1(1) by allowing her to use 242 Penetanguishene and the Airbnb for that purpose. Second, he exercised influence over her as he assaulted, threatened, and told her to work for the purpose of getting her doing more sex work.

[210] S.D. testified that she conducted sex work at 242 Penetanguishene and at two Airbnb’s. She specifically asked permission from Mr. Musara to do the sex work. He agreed. She testified that she thinks he bumped an escort ad for her once or twice. Mr. Musara also collected money for the room at 242 Penetanguishene. He rented the Airbnb and received money from her. S.D. also testified that he made comments about her “selling her pussy” and complaining about her laying around and not working in the sex trade.

[211] Mr. Musara denied doing any of those things.

[212] Dealing with the first route for liability argued by the Crown, unquestionably Mr. Musara “harboured” S.D. Even on his own testimony, he provided shelter for her at 242 Penetanguishene and at an Airbnb.

[213] A high specific intent must be proved for “harbouring” someone. It must be done for the purpose of facilitation an offence under s. 286.1. Mere knowledge of facilitation is not enough; the accused must specifically intend his actions to have this general effect. This purpose requirement is to ensure the offence does not capture persons for innocent, socially useful, or casual acts absent the required intent: Joseph, at paras. 88-89.

[214] I have a reasonable doubt whether the Crown has proven the mens rea for this offence. I am unsure that Mr. Musara offered shelter to S.D. for the purpose of facilitating a s. 286.1 offence for the following reasons.

[215] S.D. testified that she asked for and Mr. Musara gave permission to her to conduct sex work at 242 Penetanguishene. If true, this is strong evidence of Mr. Musara’s intent for giving her shelter. However, S.D.’s testimony on this is not reliable. I find it is another example of S.D. simply testifying about something because she believes it to be true without a solid foundation in reality. S.D. first gave this evidence at trial. She did not mention this previously in her statements to the police or at the preliminary inquiry. This is important evidence. She surely would have said it before if she had truly recalled it. Recalling it now over four years later is of little weight.

[216] Moreover, Mr. Musara denied this. His testimony makes sense. I have some trouble accepting that Mr. Musara gave her permission to conduct her sex work at 242 Penetanguishene. Mr. Musara shared his unit with roommates. According to him, there was no spare room for S.D. to conduct sex work. Moreover, while anything is possible, most persons paying rent for shared accommodations would not be pleased if someone who did not live there or pay rent, brought clients in for sex work. S.D. did testify that she did give some money to Mr. Musara for use of the place but her evidence on this is unclear and it seems to be rather informal for this kind of ongoing arrangement if it was truly agreed upon. Moreover, even S.D. recognized that clients would not be all that happy going to a student residence and pay for sex, even if it outwardly appeared to be townhouse. As well, if any roommate was there, they would be inconvenienced by the unexpected appearance of a client. I appreciate S.D.’s testimony that she would ask anyone there to go out of sight but even then, it is difficult to see the people there, who were not receiving any benefits from her activities, readily acceding to such interruptions and requests if they occurred as frequently as S.D. would have me believe. Finally, Mr. Musara was selling drugs from this residence. He testified about his understandable fear of the police finding out about his drug dealing. Having S.D. conduct sex work and inviting strangers there, may attract unwanted attention. Unlike Mr. Myers, S.D. did not say that Mr. Musara was at all interested in selling drugs to her clients. In these circumstances, it is highly unlikely that Mr. Musara would give S.D. carte blanche to do in-calls at 242 Penetanguishene.

[217] It might well be that S.D. did conduct some sex work there. It might also be that Mr. Musara did not know she did, as it may have been conducted at times when the place was empty. It might well be that Mr. Musara did suspect or even knew she did it sometimes and raised no objection. However, that does not rise to the level of proof that his harbouring her was for the purpose of facilitating the sex for consideration offence. When Mr. Musara first provided her the place to stay, even on S.D.’s evidence, it was because S.D. needed help as she wanted to leave Donte’s place as she felt unsafe there due to his violence. Mr. Musara did not get her to his residence to offer her a place to stay so that she could do sex work. There is a host of other plausible reasons why Mr. Musara might give her shelter from time to time other than for the purpose of facilitating her sex work. She was a steady buyer of his cocaine. Mr. Musara also knew his friend Mr. Myers was in jail and he may have extended S.D. a place to stay from time to time out of friendship.

[218] Regarding the Airbnb, S.D. testified that she did sex work there. S.D. could not be certain of who rented the Airbnb, but Mr. Musara does admit he did rent them. Mr. Musara denied it or at least denied knowing of it. For him, it was a place to party and to sell drugs. Given his denial, I am not sure if Mr. Musara knew that S.D. conducted sex work at the Airbnb.

[219] In addition, I have concerns about how reliable her memory is about giving Mr. Musara money for 242 Penetanguishene or the Airbnb. Mr. Musara denied receiving monies for sheltering her. Given that she was giving Mr. Musara money regularly for drugs and perhaps other incidentals like shared food, it is entirely plausible that monies given to Mr. Musara may have been mixed up in her memory as being monies for the use of the shelter, rather than what it might truly have been for. S.D.’s bank records do not show large or consistent payments that could not be otherwise explained by payments for these other things. From what little she could recall, S.D. testified that some of these bank payments to Mr. Musara were for drugs.

[220] It may well be that S.D. did give Mr. Musara monies for allowing her to sleep or stay at these places, but I am unable to make a concrete factual finding that she did.

[221] Even if she did, this does not sufficiently advance the case that Mr. Musara provided the shelter for the purpose of facilitating an offence under s. 286.1(1). There are other plausible explanations why he may have permitted her to stay there on occasion.

[222] Noteworthy on this issue is the evidence about the posted escort ads that show S.D. continued to offer sexual services in hotels in other parts of Ontario during the time she stayed with Mr. Musara. Mr. Myers surrendered himself into custody on October 13, 2018. At some point thereafter, S.D. started to stay at Mr. Musara’s residence. Then she says she also did sex work at Airbnbs in Barrie. She only recalled two Airbnbs. Some of the escort ads that S.D. posted offering her sexual services in October through to February 2019, were posted for locations outside of Barrie including Toronto, Mississauga, and Oakville. I can infer that these out-of-town locations were for hotels. Thus, there were other places than Mr. Musara’s shelter where S.D. could and did continue with her escorting. She did not need to rely on Mr. Musara for this. Moreover, these ads are inconsistent with S.D.’s testimony that trying to get hotels on her own did not work out. The overall tenor of S.D.’s evidence was that after Mr. Myers went to jail, aside from the brief stint at the Minx Spa, S.D. worked out Mr. Musara’s residence. This is not correct.

[223] S.D. was also unreliable in other ways about where she conducted sex work after Mr. Myers went to jail. She initially testified that she only did in-calls. It was only when she was taken to her preliminary inquiry evidence, where she testified she did both in-calls and outcalls, that she agreed that she did outcalls as well.

[224] With respect to bumping an escort ad, even if Mr. Musara did that – and he denied doing it and S.D. could only vaguely recall it – it was a discrete and isolated act. He could have just done this as a favor for S.D. It is not of much weight.

[225] In conclusion, given the weaknesses in S.D.’s testimony and Mr. Musara’s denial, I find that the Crown has not proven this mode of procuring.

[226] I now turn to the second way the Crown seeks his conviction for procuring. I find that the Crown has failed to prove the actus reus of the offence; that Mr. Musara “had influence over the movements” of S.D.

[227] To begin, I had reasonable doubts about whether Mr. Musara sexually assaulted, assaulted, or threatened S.D. Thus, the Crown cannot rely on these acts to support a finding that Mr. Musara had influence over the movements of S.D.

[228] There are the comments S.D. testified that Mr. Musara made. This was to the effect Mr. Musara told her that she should be “selling her pussy” or complaining about her laying around and not working. As I will explain when I deal with the material benefit offence under s. 286.2(1), I find that Mr. Musara did make comments of that sort to S.D. However, this does not amount to proof beyond a reasonable doubt of the actus reus. In my opinion, the test in Ochrym and N.S. has not been met.

[229] The Crown has not proven beyond a reasonable doubt that these comments made by Mr. Musara influenced S.D. Looking at her state of mind, I am far from sure that what Mr. Musara did or said had any effect on S.D. offering sexual services. On S.D.’s evidence, it was Mr. Myers who had direction and influence over her even during this time. Also, S.D. was offering her sexual services on her own initiative, and she set the arrangements on how she did it. If there were problems about her working, it was likely her bad drug use. Any objections or complaints made by Mr. Musara had no real influence on her offering sexual services or her movements.

[230] Turning to the nature of their relationship. When assessed against what the Crown has proven and Mr. Musara’s testimony, this too fails the test in Ochrym. While I recognize the depths of S.D.’s dependency on cocaine and the fact Mr. Musara was her drug dealer, in my opinion, the lack of involvement by Mr. Musara in her sex work, the continued influence of and relationship with Mr. Myers though he was in custody, and S.D.’s ability to exercise her own will and choices when it came to her movements in her sex work, leads me to conclude that the actus reus has not been proven.

8. Count 4: Material Benefit from Sexual Services for Consideration

(a). Analysis of the Evidence

[231] The Indictment charges that along with Mr. Myers and Mr. Nolan, Mr. Musara received a financial or other material benefit, namely money, from the commission of an offence under s. 286.1. The Crown position is that S.D. gave money to Mr. Musara for two reasons that make out the offence: (1) payment for allowing her to stay at Mr. Musara’s place, whether at 282 Penetanguishene or an Airbnb; and (2) for cocaine that S.D. purchased from him.

[232] There is no question that Mr. Musara knew that the money came from a s. 286.1(1) offence. He essentially admitted that. This is where S.D. got all of her money from. That she was a sex worker was known to Mr. Musara. The issue is whether the money Mr. Musara received falls within the prohibition of s. 286.2 with its somewhat complicated scheme of exceptions.

Money Received For Staying at Mr. Musara’s Place

[233] Regarding any money received by Mr. Musara for S.D. using his residence for sex work, there is a factual issue that needs to be resolved. S.D. testified she gave Mr. Musara about $300 for this. Mr. Musara denied ever receiving such money for staying at his place. He testified he was quite open and generous to S.D. and others. He let people stay and did not charge them. Mr. Musara testified that he did not need the money.

[234] After careful consideration, I am not sure that S.D. did, in fact, pay Mr. Musara $300 for the use of his premises so that she could ply her sexual services. S.D. could not recall much of the conversation. She testified that he asked for this amount and explained how he got the figure, but she could not recall the conversation.

[235] The amount does not seem that large for what S.D. testified was a regular use of a spare bedroom at 282 Penetanguishene. On her evidence, there was no formal arrangement struck. Mr Musara did not receive a share of her earnings. Also, I have not accepted a number of other things that S.D. testified about with respect to her use of 282 Penetanguishene to see clients such as seeking permission from Mr. Musara. This was also at a time when S.D.’s use of cocaine was at its worst. It could readily have affected her recollections.

[236] I also bear in mind that Mr. Musara testified that he received money from S.D. for other things like shared take-out food. S.D. does not specifically recall this but does not take issue with it happening. Additionally, Mr. Musara testified that he fronted S.D. for drugs. I accept that he did this from time to time. Given his relationship with S.D. and Mr. Myers, and the fact that S.D. was such a regular buyer of cocaine, it makes sense that Mr. Musara would extend her credit. Thus, any payment of money to Mr. Musara that S.D. feels was for the use of the room could be mixed up in her mind with a repayment for incidentals and shared expenses or for drugs.

[237] Thus, I find that the Crown has not proven beyond a reasonable doubt that Mr. Musara received any money for the shelter that he provided to her.

Money Received for Cocaine

[238] The second monies given by S.D. to Mr. Musara was for cocaine.

[239] First, the defence submits that receiving payment for cocaine is not a financial or other material benefit as defined in s. 286.2. It is submitted that to make out a “benefit”, the Crown must prove beyond a reasonable doubt that Mr. Musara “profited” somehow when he received money from S.D.

[240] I do not accept that submission. To require the Crown to show some form of “profit” is to read too much into the use of the term “benefit”. In my opinion all that is required is proof that the person received some form of financial or other material gain or advantage. The use of the qualifiers “financial or other material benefit” limits the gain or advantage to money or something of monetary value. To suggest that, additionally, the person must obtain a “profit” is to impose an element of the offence that would in many cases be impossible to prove. This would be contrary to the purpose behind the provision and the careful delineation of the various exceptions set out in s. 286.2(4) which are in part designed to limit the criminal reach of the offence.

[241] The defence poses the example of a repayment of a loan without interest by the sex worker to a person who lent them the money. It is submitted that the repayment of monies owing would not amount to a “benefit” as the recipient did not obtain any profit: R. v. Esho and Jajou, 2017 ONSC 6152, at para. 123.

[242] Respectfully, I do not agree. Putting aside for the moment the argument that actually getting paid back a loan rather than having it defaulted is a “benefit”, in my opinion, the repayment of the loan is inherently a financial gain or advantage. It is the receipt of money. The overall circumstances as to why a person received the money is immaterial. However, no injustice will be done if this situation is considered a benefit within the meaning of s. 286.2(1) since the person who receives that loan back would be able to rely on the exception set out in s. 286.2(4)(d) in that they received the benefit as a result of a “legal or moral obligation of the person from whose sexual services the benefit is derived.” Providing this exception is an indication that Parliament intended to capture such scenarios within the scope of “financial or other material benefit” but to later make an allowance for them through this and other exceptions.

[243] Second, Mr. Musara relies on the case of R. v. Nicolaou, 2008 BCCA 300, to argue receiving payment for selling drugs per se does not fall within the ambit of s. 286.2. Nicolaou was an appeal of conviction under the old offence of living off the avails of prostitution. On the facts of that case, the appellant ran a drug operation. The complainant conducted sex work. The British Columbia Court of Appeal disagreed that the offence of living on the avails of prostitution was made out simply because the appellant was running a business of selling drugs funded in part by the proceeds of the complainant’s sex work. The Court referred to the old English case of Shaw v. D.P.P, [1962] A.C. 220 at 263 (H.L.), where it was held that there had to be a nexus between the supplying of goods and services and the sex work. Not every supplier of goods and services to a sex worker was caught by the offence of living off the avails. Where the trial judge fell into error was his finding simply selling drugs to a sex worker sufficed for the offence; what was missing was an assessment of the evidence proving the appellant was living parasitically off the sex worker. Relying on Nicolaou, Mr. Musara argues that selling drugs to a sex worker cannot amount to an offence under s. 286.2 unless there is proof of a parasitic relationship.

[244] I do not agree. Nicolaou has been overtaken by the amendments to the Criminal Code after the Supreme Court of Canada struck down as unconstitutional the offence of living off the avails of prostitution in Canada v Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. The new offence of receiving a material benefit from sexual services has replaced the old offence of living off the avails. The statutory provision in s. 286.2 has replaced the prior requirement to prove a parasitic relationship with its more specifically delineated elements of the offence, exceptions to the offence, and exceptions to those exceptions. In short, legislatively, Parliament has defined what types of circumstances and relationships should be considered “parasitic” or “exploitative” such that they should be prohibited. As the Court of Appeal for Ontario noted in N.S. at para. 77:

In enacting the PCEPA, Parliament carefully crafted exceptions to the offences in ss. 286.2(1) and (2) to ensure that criminal liability would not result where there was not an exploitative relationship. As Minister MacKay said, “Legislated exceptions clarify that the [material benefit] offence does not apply to non-exploitative relationships”: House of Commons, Debates (Hansard), 41st Parl., 2nd Sess., Vol. 147, No. 101 (11 June 2014), at p. 6654. The Technical Paper explains that the exceptions in ss. 286.2(5)(a) through (d) remove the availability of the exceptions in s. 286.2(4) if any exploitative circumstance develops.

[245] A drug dealer receiving payment for drugs from a sex worker, may or may not, amount to a s. 286.2 offence depending upon the application of the provisions found in s. 286.2 as a whole. There is no absolute exclusion or inclusion of liability one way or the other. It very much depends upon the facts of the case.

[246] Mr. Musara has admitted he received a financial benefit from S.D. for the cocaine he sold to her. He knew it was from the commission of a s. 286.1(1) offence. I must now turn to the provisions of ss. 286.2(4) and (5) to determine whether the exceptions apply.

[247] The parties take opposing views as to whether the exceptions apply. Mr. Musara relies upon s. 286.2(4)(c) and s. 286.2(4)(d).

[248] Subsection 286.2(4)(c) states:

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

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

[249] I find that the Crown has proven beyond a reasonable doubt that this exception does not apply. Mr Musara testified that he is careful about selling cocaine to potential customers. Someone has to vouch for them before he sells cocaine to them. Of course, given the illegal nature of the goods he offers, this is prudent. As a result, factually, the cocaine provided to S.D. is not a good or service that is offered on the same terms and conditions to the general public. This is not because he sold the cocaine to S.D. at different prices than his other customers; rather, it is because he does not offer his cocaine to the general public.

[250] While this factual finding resolves the issue of whether s. 286.2(4)(c) applies, I would add the following comment. I would be surprised if Parliament intended this exception to apply to illegal activities such as drug trafficking. It seems clear from the wording of the provision, the total scheme of the section, and the purpose of the legislative amendments that it was meant to apply to legal services and goods offered to the public at large.

[251] The second exception relied on by the defence is s. 286.2(4)(d) which states:

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

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

[252] In response, the Crown submits that drug dealers cannot avail themselves of this exception.

[253] I do not agree. The scheme of s. 286.2 expressly contemplates that the exceptions do not preclude illegal drugs as a good under s. 286.2(4)(d). This is made clear by the inclusion of s. 286.2(5)(c) which states:

(5) Subsection (4) does not apply to a person who commits an offence under subsection (1) or (2) if that person

(c) provided a drug, alcohol or any other intoxicating substance to the person from whose sexual services the benefit is derived for the purpose of aiding or abetting that person to offer or provide sexual services for consideration;

[254] There would be no purpose in excluding the application of the exception to the offence for “drugs, alcohol, or any other intoxicating substance” if drugs could never fall within the terms of s. 286.2(4). While Parliament did not specifically refer to “illegal” drugs, the breadth of the terms “drugs, alcohol, or any other intoxicating substance” reveals its intention to capture all forms of drugs including those prohibited by the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Also, given that one of Parliament’s purposes is a safety related objective for sex workers by mitigating some of the dangers associated with the provision of sexual services for consideration, it makes sense that Parliament would leave scope for sex workers to purchase illegal drugs: N.S. at paras. 59, 63, 123. Sadly, it is all too common for sex workers to have addictions or having to resort to illegal drugs to conduct their work. There are strong policy reasons in keeping with the safety objective to allow sex workers to obtain drugs. The principles behind harm reduction support the provision of even illicit hard drugs to this class of vulnerable persons. Depriving sex workers of a trusted or a relatively safe source of drugs would make their work more dangerous.

[255] Undoubtedly, this motivated Parliament to permit drug traffickers to receive financial or other material benefit from trafficking drugs to sex workers. However, strict limits are placed on the circumstances of the receipt of such benefits. This is in keeping with the other objectives of the section, which is to discourage entry into the sex trade, to deter participation in it, to prohibit the development of economic interests in the exploitation of sex workers, and ultimately to abolish it. Equally, it is all too common that those who procure and exploit sex workers provide drugs for the purposes of ensnarement and control. Thus, the exception in s. 286.2(4)(d) is not available if the drug trafficker who receives the benefit does anything to counsel or encourage the person to provide sexual services, receives benefits disproportionate to the value of the good, or trafficks drugs for the purpose of aiding or abetting the person to offer or provide sexual services for consideration. In short, where someone receives a benefit from the sale or provision of drugs in a non-parasitic or non-exploitative relationship, they may take shelter of the exception found in s. 286.2(4)(d). But if they engage in those acts which reflect a parasitic or exploitative relationship, they are denied the protection of that shelter. Finally, the exception must be assessed in light of the fact that the CDSA still prohibits and penalizes those who traffic in drugs to sex workers. Seen in that context, the focus of the scheme of exceptions even when applied to benefits received from the sale of illicit drugs remains on the safety of the sex worker. The operation of the exception does not reveal any permissive attitude towards drug dealers.

[256] On the facts of this case, I find that the Crown has proven beyond a reasonable doubt that Mr. Musara counselled or encouraged S.D. to provide sexual services. His words did so. His actions did so. And he intended to counsel and encourage S.D. to provide sexual services: R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, at para. 38. Thus, he cannot rely on the exception found in s. 286.2(4)(d).

[257] S.D. testified that Mr. Musara had become mad or irritated with her on a few occasions. The context was that Mr. Musara was complaining that she was laying around, not working, and just getting high. S.D. could not recall exactly but it was about her not working in the sex trade and not “selling her pussy”.

[258] Let me be frank. S.D.’s testimony about these conversations has a number of frailties. Her recollection is not the best. She has been inconsistent. Yet, these frailties do not cause me to reject her evidence about this.

[259] Regarding S.D.’s testimony about Mr. Musara making a comment about “selling her pussy”, in cross-examination, it was put to S.D. that she did not mention this in her police statements. It was put to her that she first mentioned this at the preliminary inquiry. At trial, she could only recall Mr. Musara saying it but could not recall much of the context. Similar cross-examination was conducted in respect to a statement that she only mentioned for the first time at trial that Mr. Musara had said that he was upset because she was not working and was “just fucking around”.

[260] However, in re-examination, S.D. was referred to her March 5 police statement where she did tell the police that Mr. Musara got upset at her because she was not working. In my view, this restored her credibility and reliability on this point.

[261] She was also cross-examined about her testimony given at the preliminary inquiry on these comments allegedly made by Mr. Musara. I find that her testimony was not that dramatically different between trial and the preliminary inquiry and this cross-examination did not adversely affect her testimony.

[262] I appreciate S.D.’s recollection is not perfect on this. Also, she was likely high at the time. But she does not purport to have a perfect memory on this. It would be surprising if she did. But the inconsistency in the peripheral details does not undermine her testimony on this issue. It is because the details are not that important in this instance. The core of her testimony is that Mr. Musara was upset with her for not working so hard in her sex work and by his comments and attitude he encouraged her to do more. The core of this testimony has remained unshaken and is straightforward. Her testimony also makes sense to me as I will explain.

[263] Before I do, let me make the following observations. First, I appreciate that she tied some of these comments made by Mr. Musara to the assaultive behaviour that I have acquitted Mr. Musara on. However, I did not make a finding that the assaults did not happen. Rather, I found that they likely did but it did not reach the standard of proof beyond a reasonable doubt. I find greater assurance that Mr. Musara made the comments S.D. testified to. As I will explain, I reject Mr. Musara’s testimony he did not, and his testimony does not raise a reasonable doubt. Second, I agree these comments made by Mr. Musara is insufficient to support an intention to exploit as required under s. 279.01. However, the intent requirement for exploitation is significantly more onerous than for the offence under s. 286.2. Third, the defence submitted that this testimony cannot be relied upon as S.D.’s memory as to when he said it and the context of it has changed. In my opinion, the inconsistency is not determinative given the whole of the evidence and the context of the circumstances S.D. found herself in. I find this does not diminish the weight I can place in it.

[264] I have no doubt that Mr. Musara said these things and was saying them to counsel or encourage her work in the sex trade. I reject his evidence on this point and it does not raise a reasonable doubt.

[265] Mr. Musara had more than one motive to counsel or encourage S.D. to provide sexual services. Mr. Musara was a friend of Mr. Myers. Even while in custody, Mr. Myers continued to see S.D. as his sex worker. He continued to exploit her while in custody and intended to continue doing so when he obtained his liberty. I do not accept that Mr. Musara did not know how Mr. Myers made money. Mr. Musara and Mr. Myers had a close relationship both personal and business-related. Mr. Musara occasionally looked to Mr. Myers for cocaine if his supply did not come through. Mr. Musara admittedly knew S.D. worked in the sex trade. He saw S.D. and Mr. Myers in close company with each other. It is implausible that Mr. Musara did not know the basic nature of their relationship. Thus, Mr. Musara would have reason to encourage S.D. to continue offering sexual services so that his friend would continue to benefit from that.

[266] The other motive is more self-interested. S.D. bought drugs from Mr. Musara. Thus, he profited from her sex work in this way. If she chose not to or was unable to provide sexual services, she would not have the financial resources to continue buying cocaine from Mr. Musara. Mr. Musara testified that he would at times “front” her drugs. He surely would want to ensure that any debt S.D. owed him, would be paid back. While I do not discount that Mr. Musara also told S.D. on occasion to not use so much drugs, I am of the view that this was more likely to make sure S.D. continued being a reliable sex worker as it was out of concern for her welfare.

[267] On this issue, Mr. Musara was not credible. His testimony that he wanted to help S.D. with her addiction and get her to rehabilitation is rejected. It was implausible and self-serving given that it was he who was selling her cocaine. I am not saying that he did not make comments like that, for no doubt he did, but it was not intended to truly help her. It makes no sense for a drug dealer to permanently cut off from drugs a person who has been a consistent purchaser of cocaine. His testimony does not raise a reasonable doubt on this issue.

[268] In addition to the comments he made, his acts also encouraged S.D. to provide sexual services. He provided her with cocaine knowing her use and need for the drug. Without her drugs, her provision of sexual services would be negatively affected. Mr. Musara knew that. While he sold her drugs mainly to profit from the sale, he also did so intending that his acts would encourage and help her to provide sexual services. Again, this conclusion is not inconsistent with my finding that he did not offer her cocaine for the purpose of exploiting or facilitating her exploitation. The intention of selling drugs to encourage someone to offer sexual services is a very different intent from an intention to exploit.

[269] Looking at the entire circumstances, I am sure that Mr. Musara encouraged her to work in the sex trade. He knew that was how she made money. He knew that Mr. Myers was involved with her in the sex trade. While he may have wanted to “stay in his own lane” as the defence argued by just doing drug dealing, he also was minded to look after his own financial interests and that of his friend, Mr. Myers. I note Mr. Musara admitted that he was close and supportive enough to tell Mr. Myers to “stay strong” while Mr. Myers was in custody. Encouraging S.D. to work and providing her cocaine so that she was more able and willing to work is a very realistic scenario. I am certain that it happened. I accept this part of S.D.’s testimony. To repeat, I emphasize that Mr. Musara advising her to seek rehab or lessen her consumption of cocaine is not logically inconsistent with this scenario. Being totally “fucked up” on cocaine would interfere with her ability to perform sex work. It is entirely plausible that Mr. Musara would counsel her to get help with her severe addiction because of that.

[270] Given this factual finding, the exception in s. 286.2(4)(d) does not apply. It is not necessary to assess the exception to the exception found in s. 286.2(5)(c): R. v. Hall, 2018 ABQB 459 at para. 87.

[271] The Crown has proven beyond a reasonable doubt that none of the exceptions found in s. 286.2(4) apply. All the essential elements of the offence have otherwise been proven beyond a reasonable doubt.

E. THE CHARGES AGAINST DEVONE NOLAN

1. Count 3: Procuring s. 286.03(1); Count 4: Material Benefit s. 286.2(1); Count 12: Sexual Assault s. 271

(a). Analysis of the Evidence:

[272] I find Mr. Nolan not guilty of all three counts.

[273] Proof of these counts depends upon the acceptance of S.D.’s testimony. On these charges, there is little or no confirmatory evidence supporting the specifics of her allegations against Mr. Nolan.

[274] The following four reasons explain why Mr. Nolan is not guilty of these three counts.

[275] First, there are the general reliability concerns about S.D.’s testimony already referred to. At the time of these allegations, her cocaine addiction and the resulting impairment was at its worst. I have no doubt that this affected her powers of observation, her recollections, and how she perceived events.

[276] Second, the history of how S.D. came to disclose her allegations to the police is highly problematic. It significantly detracts from the weight that can be afforded to her evidence regarding the charges against Mr. Nolan.

[277] S.D. made handwritten notes the morning of March 5 before going to speak to D.C. Powell and D.C. Zeppieri. She did this since she wanted to keep track of things as in her previous interactions with the uniformed police officers, she found herself saying things all over and in a disjointed fashion. S.D. admitted that while she could not put in all the details, the notes were of the main points of everything that happened to her. I find that S.D. put a lot of thought and effort into them. They were 18 pages and single spaced. She used different color pen to highlight portions. She agreed she wanted to tell the police the names of people involved. Her stated motivation was to keep herself safe.

[278] Nowhere in her notes does S.D. mention “Body” as she knew Mr. Nolan to be called.

[279] I find this to be a significant omission. Mr. Nolan’s alleged acts of sexually assaulting her (perhaps twice), attempting to procure her, and receiving monies for rental Airbnb’s were not peripheral details. She knew who Body was. She believed he was part of the “gang” that Mr. Musara and Mr. Myers belonged to. She would have every reason to be afraid of him. Yet, she never mentions him in her notes, nor does she give any indication of the criminal acts he is said to have perpetrated on her.

[280] S.D. could not really explain why she made no reference to him in the notes that she spent so much time and effort on in preparation for the meeting with the HTET. She undoubtedly considered this to be an important meeting.

[281] At that two and a half hour-long March 5 meeting with D.C. Powell and D.C. Zeppieri, S.D. does mention Body. Just once. When asked by D.C. Powell how many people were in this “gang”, S.D. estimated about 50 and explained that many came over to Tap’s house. She mentioned a couple of names of the people who came over. Body was one. But that is all S.D. said about him. This, despite S.D. being questioned about the sexual assaults that happened at Tap’s house at the party. This, despite being specifically asked by D.C. Powell near the end of the interview if there was anything else that was important to tell them. This, despite S.D.’s appreciation of the importance of what she was telling the police and her professed motivation in keeping safe.

[282] While I appreciate that on March 5, she had a lot to say and what happened to her covered a lot of time, I cannot accept that what Body allegedly did to her was not one of the “main points” that S.D. testified she was telling the police in the interview. The Crown submits the focus was on Mr. Myers. That may well be. However, S.D. did tell the police about what others did to her including those involved in the gang sexual assault, Mr. Musara’s sexual assault and assaults on her, and the involvement of others with Mr. Musara. Even with the poor state of S.D.’s memory, I find it difficult that she would just forget to tell the police of the allegations against Mr. Nolan. If she did truly forget, this is cold comfort for the Crown when they urge that I should place reliance on her memories on these counts.

[283] The omission of the allegations against Mr. Nolan during the March 5 interview is significant.

[284] Coupled with these significant omissions, the process by which S.D. did make her allegations against Mr. Nolan is worrisome. Having done some investigative checks, the police came up with Mr. Nolan as being potentially the Body S.D. had referred to in her March 5 statement. On March 21, 2019, the police showed her a photo line-up with Mr. Nolan in it. She identified him as Body. I have no doubt that in S.D.’s mind, the police showing her this line-up had some suggestive influence on S.D. and her memories. S.D. was a suggestive person. Her memories were susceptible to influence and taint. By exposing her to Mr. Nolan in such a line-up, S.D. would have believed Mr. Nolan to be a suspect in the investigation even though she had, to that point, not raised any allegations against him. In a few comments she made to the officer showing her the line-up, her state of mind is illustrated when she said the police were so good and how she could not believe they found Body. She was impressed and pleased. Her statements reveal how suggestible she is. It also shows that it was only when the police, by their lineup and questions, revealed their belief that he was a suspect in their investigation, that S.D. first made criminal allegations against Mr. Nolan.

[285] About 15 minutes after this lineup, the HTET investigators took a statement from S.D. about Body. This was the first time she made accusations against Mr. Nolan. However, it was only when D.C. Powell asked if Body was involved in the gang sexual assault that S.D. began to make specific allegations against Mr. Nolan. As an example, initially, she responded to D.C. Powell that though she was really messed up that night, she was “pretty sure” Body was involved in the gang sexual assault. It was only when asked later if she was 100% sure, S.D. retracted and said she was not at all sure.

[286] Third, specifically relating to the sexual assault charge, she was impaired by intoxicants and her testimony about what happened is inconsistent. Taking full account of the fact that inconsistency in details and recollections are to be expected when one suffers a trauma such as sexual assault, there were inconsistencies when placed in the context of the totality of the circumstances, that are concerning.

[287] Although Mr. Nolan faces only one count of sexual assault, S.D. testified about two. In examination in chief, S.D. testified that the first night she met Mr. Nolan was the night he first sexually assaulted her. This was after Mr. Myers was arrested and it happened in a spare bedroom at Mr. Musara’s residence. S.D. was lying in the bed trying to sober up as she was very high on cocaine and her nose was stuffed up. She testified that Mr. Nolan walked in and talked to S.D. about possibly working for him and that she could make $2000 a night working for a musician called Nave or other artists. S.D. refused saying that she was “Stephan’s bitch”. Mr. Nolan was sitting on the end of the bed. He then walked to the door, locked it, laid on the bed, and tried to take down her pants. S.D. testified that she pulled them back up and continued saying she was “Stephan’s bitch”, but Mr. Nolan ignored her and sexually assaulted her. Once finished, he walked out of the room and left.

[288] One factor detracting from her testimony is that S.D. was very high on cocaine and in her words, “fucked up.” In these circumstances, I do not fault her for not knowing much of the details given her state of sobriety at the time and the passage of time since then. Nonetheless, she had little recall of the details of the assault.

[289] She also was inconsistent in her testimony. She testified that she said no and that she was “Stephan’s bitch” a number of times to Mr. Nolan. In her March 21^st statement, she told the police that she was so fucked up on cocaine, she could not even talk or breathe. She said to the police that she was just mumbling. The Crown submits this is not inconsistent. In my view, it is.

[290] In chief, she recalled Mr. Nolan sitting on the bed. In cross, just a couple of days later, she could not recall where he was. In my mind, this was just an example of how fragmented S.D.’s memory is. It is a small inconsistency but illustrates a larger point. Her memory is what she recalls at the time she is asked about it. If she does not recall, it is gone. If she does recall, she will just say it as if it is the truth. But she will sometimes say something very different. It struck me that she was not trying to be dishonest about it. But in circumstances like this, it is hard for a trier to rely on it.

[291] Her impairment at the time and the inconsistencies standing alone would not have led me to reject her testimony regarding being sexually assaulted by Mr. Nolan at Mr. Musara’s residence. Many victims of sexual assault have inconsistent memories and yet are truthful when it comes to the core allegation. However, in this case, when coupled with the nature of her disclosure to the police, that state of S.D.’s testimony on this allegation leads me to be entirely uncertain whether her account of what took place can be trusted. She may well have been sexually assaulted as she says - I observe some of the details she gives have an inherent plausibility - but the evidence does not rise to the standard required for a criminal conviction.

[292] The evidence given by S.D. about the second alleged sexual assault is very weak. She testified it happened the first time she went to an Airbnb. She deliberately got blackout drunk that night to celebrate her birthday. She was inconsistent about whether she took pills. She lost the cocaine she had because she was so drunk. As a result of losing her cocaine, she went to a bar to find Body. She then had a two second flash memory of Mr. Nolan having sex with her. She added that Body was behind her. She had not said that before in her statements or at the preliminary inquiry. No reasonable trier of fact could convict Mr. Nolan on a two second flash memory of Mr. Nolan sexually assaulting her in her state of extreme impairment.

[293] Fourth, S.D.’s recollection about the procuring and material benefits charges is poor. The Crown has not proven these charges beyond a reasonable doubt.

[294] Regarding the procuring charge, I am not convinced that Mr. Nolan said these comments that the Crown relies upon to S.D. Even if he did say something along those lines, stripped of any real context, I cannot conclude that these isolated comments amount to the offence of procuring.

[295] SD testified that Mr. Nolan tried to get her to work for him on two occasions. The first time was the night of the alleged sexual assault at Mr. Musara’ residence. As noted above, S.D. testified that Mr. Nolan said something like S.D. could be “fucking Nave for $2,000” and that she should work with him. S.D. replied no she was “Stephan’s bitch”. The second time was at an Airbnb. S.D. could not identify which one. She testified it happened sometime after the flash memory of her being sexual assaulted. She could not recall the context of the comment, but she testified that Mr. Nolan told her “if you want this dick, you have to break bread with me”. S.D.’s interpretation of “breaking bread” was to pay him money. In other words, S.D. interpreted his comment to mean if S.D. wanted to have sex with Mr. Nolan, she would have to pay him.

[296] At the time of the comments, S.D. was high on cocaine. Her recollection was poor. S.D. recalled little else that gives context to the comments.

[297] With respect to the first alleged act of procurement, in my view, given her general unreliability, the poor recollection of the context of this one conversation, the fact it was just one thing Mr. Nolan is said to have said, the lack of clarity of meaning in that one thing, and the fact that S.D. never worked for Mr. Nolan nor was there any concerted attempt to get her to do so, this one isolated incident does not amount to proof beyond a reasonable doubt of procuring or an attempt to procure. This is especially so given S.D. alleges Mr. Nolan said this just prior to him sexually assaulting her. Since S.D. testified that the attempt to procure occurred during the same incident, my doubt about the sexual assault necessarily bleeds into that conversation. The comment may not have been made at all.

[298] With respect to the second comment, the proof is even weaker. Again, S.D. could give no other details of the circumstances of that comment although she admitted other things were said. When questioned, she agreed that she interpreted the comment that if S.D. wanted good dick with Body, she had to pay Body. That interpretation can have other meanings than an attempt to procure her into the sex trade. According to S.D., it meant that she would have to pay Mr. Nolan to have sex with him. This is not procuring.

[299] Regarding material benefits, S.D. gave shifting evidence. In chief, she was not sure who rented the Airbnb’s but it was Body or Tap. She said Mr. Nolan asked for money twice for the Airbnb. She gave Body money once or twice. Several people would come and go from the Airbnb’s. Body asked her for $300 a night for the Airbnb. In cross, she agreed it could have been Tap or Body or someone else who rented the Airbnb. She did not know who actually did. She did not recall Body asking for money for the first Airbnb. She thought he asked for money for the second one. She stayed more than a night but did not know how long. S.D. did not know how much the Airbnb cost per night. In cross, she could not recall when the money was given to Body or really how much money was given. She testified that Body asked her for money to pay him back for the Airbnb she used.

[300] I find that her evidence regarding this charge to be unreliable. I am not sure that Mr. Nolan ever did ask her for money or that she paid him money. There is no probative evidence as to who actually rented the Airbnb and thus have a reason to ask for the money. The fact Body may have cleaned the premises is a tenuous connection to him being the renter. At the end of the day, when she testified that it was Body who asked for reimbursement, I found that both in substance and in the manner that she answered the question, she was not, in her mind, all that sure when she identified it to be Body. Moreover, S.D. was quite vague about whether Mr. Nolan sold cocaine but had a vague memory of buying from him. At the time, she was using a lot.

[301] Even if S.D. did pay him some monies, the Crown has not proven beyond a reasonable doubt that Mr. Nolan knew her monies came from the offence of obtaining sexual services for consideration. S.D. opined that Mr. Nolan knew that she was in the sex trade, but it was because in her view, everyone did. But she was essentially making an assumption. S.D. did not give monies to Mr. Nolan before. She did not associate much with him. While I suspect that Mr. Nolan did in fact know, this does not amount to proof beyond a reasonable doubt.

[302] In the final alternative, I am not sure that the Crown has proven beyond a reasonable doubt that the exception in s. 286.2(4)(b) does not apply. If S.D. paid Mr. Nolan, it was for her share of the use of the Airbnb. I have no evidence whether the amount was fair and equitable since I do not know the cost of the Airbnb. However, paying someone a reasonable sum of money for a share of a living arrangement is a moral or legal obligation. The Crown has not proven in these circumstances that it is not.

[303] For these reasons, Mr. Nolan will be found not guilty of all the counts.

F. SECTION 7: LOST EVIDENCE AND FAILURE TO RECORD EVIDENCE

[304] Mr. Myers brings an application for a stay of proceedings based upon lost evidence as well as failure to record certain interviews of S.D.

[305] Dealing with the latter issue, this can be dispensed of quickly. Mr. Myers argues that the police failure to record two interactions with S.D. violated s. 7 of the Charter: (1) the interaction when S.D. changed her recollection that Ms. Browne rather than a black pimp drove her to Lake Couchiching; (2) the interaction when the HTET offered her “immunity” for her involvement in the disposal of the firearms and taser.

[306] I find there to be no violation of s. 7 of the Charter for failing to video or audio record these interactions for the following reasons.

[307] First, no evidence was “lost” by the failure of the police to take a video recorded statement of S.D. in these two instances. The defence is not entitled to have the police conduct an investigation in a certain fashion to avoid a s. 7 violation: This principal was summarized by the Court of Appeal for Ontario in Ontario (Labour) v. Miller Group Inc., 2021 ONCA 879, at para. 34 as follows:

[34] In the criminal law context, the right to make full answer and defence in s. 11(d) of the Charter does not extend so far: R. v. Darwish, 2010 ONCA 124, 100 O.R. (3d) 579, at paras. 29-31. An accused person does not have a “constitutional right to direct the conduct of a police investigation of which she or he is the target”: Spackman, at para. 108. The police are not required to obtain the consent of the accused person before taking investigative steps. An accused person has no right to insist that further or other investigative steps be taken. Nor are the police required to permit the target of investigation to be present during the inspection or testing of physical evidence.

[308] Second, with respect to the change in recollection from the male pimp to Ms. Browne, S.D. first told this to D.C. Powell and D.C. Zeppieri in their car as they took a trip to a bank to secure some records. While I appreciate S.D. had texted them in advance to say she had something important to tell them, the officers would not have known exactly what she had to say. When she did tell them her new memory, the officers were not in a place with the facilities immediately at hand to video or audio record her utterances in the car. Thus, their failure to make a video or audio recording is explainable.

[309] Third, there was nothing malicious or negligent in the police not bringing her back for a video recorded interview at their offices after S.D.’s disclosure in the car. I appreciate that D.C. Zeppieri testified that he would have done this. However, he was there as an officer-in-training at the HTET and was only assisting D.C. Powell. D.C. Powell made the decision not to bring S.D. back to the HTET’s offices for a video recorded statement as she did not want to subject S.D. to any further trauma. This decision should not be second-guessed. It was reasonable.

[310] Fourth, the officers made notes of what S.D. told them. The substance of what S.D. said to the officers was recorded. This was disclosed to the defence. There was no impact on the fairness of the trial by any failure to disclose this important evidence. The officers as well as S.D. were available to be questioned about their recollections of what was said in the car. There was no substantial disagreement as to the change in S.D.’s memory.

[311] Fifth, after watching the questioning of S.D., the failure to video record a statement had no effect on Mr. Myers’s ability to make full answer and defence. The defence had a full opportunity to cross-examine S.D. on this change in her memory. It was effective. The failure to obtain a video recorded statement of S.D. on this change would not have had any appreciable effect on how the defence was conducted or my verdict.

[312] Sixth, with respect to the failure to video record the offer of “immunity”, similar considerations apply. To be precise, the HTET did not offer her “immunity”. No agreement was signed. No guarantee was given to S.D. that she would not be charged for her involvement in the shooting or disposal of the gun by the Peel Regional Police that was in charge of investigating the shooting incident. The HTET only decided and told S.D. that she would not be charged by the Toronto Police Service for her involvement. Again, this conversation was recorded in notes and disclosed. The witnesses were questioned about this. Failure to video record this conversation did not have any effect on Mr. Myers’s ability to make full answer and defence.

[313] Turning to the issue of the lost video recording. The facts outlining this can be briefly stated. On March 3, 2019, P.C. Urbas and P.C. Joseph attended at a shelter where S.D. was staying at in response to a police call about a man threatening her. P.C. Urbas testified that they spoke to S.D. S.D. advised the officers that on this day that she saw a male in a car videotaping her with his cellphone. S.D. believed that this male was associated with her pimp, Mr. Myers, who was in jail. S.D. told them that she had fled from the house where she had been staying at with a police escort. S.D. advised that she was scared and concerned for her safety. P.C. Urbas did not take any formal statement from S.D. She testified this was because their specialized unit, the HTET, was to handle that. S.D. was emotional and scared. S.D. was talkative but P.C. Urbas wanted her to stop talking as she would be talking to the HTET. S.D. was transported back to 51 Division to see if this could be facilitated. During the ride back to the police station, the cruiser was equipped with a camera and a microphone. It is automatically on when there is someone in the back seat. The ride took about 8 minutes. P.C. Urbas does not recall the details of what S.D. said in the cruiser, but she testified that not a lot was said. P.C. Urbas had no notes of what was said. It was not a long ride. After the detectives spoke to her at 51 Division, P.C. Urbas and her escort drove S.D. back to the shelter. The microphone and camera would have been activated in the cruiser.

[314] P.C. Urbas testified that the recordings in the cruiser automatically uploads at the station. She does not deal with the disclosure. The HTET investigators do. This recording no longer exists.

[315] The Crown proffers really no explanation why this recording could not be found. The Crown submits that presumably the recording was taped over.

[316] The law regarding a stay of proceedings based upon a s.7 violation for destroyed or lost evidence was recently summarized in R. v. Janeiro, 2022 ONCA 118, at paras. 107- 111. Where the applicant shows that disclosable evidence has been lost, a Charter breach contrary to s. 7 will be found unless the Crown provides a satisfactory explanation for that loss. It may do so by establishing that the evidence was not destroyed or lost by unacceptable negligence. It can show that reasonable steps were taken in the circumstances to preserve the evidence, bearing in mind the relevance that the evidence was perceived to have at the time it was lost or destroyed. As the relevance of the evidence increases, the degree of care required in preserving the evidence increases. Conversely, as relevance decreases, the required degree of care is reduced. Alternatively, even if the there is a satisfactory explanation for the loss or destruction of the evidence, the applicant will still succeed if they establish that the evidence is so important that its loss undermines the fairness of the trial. This is a high hurdle to overcome. The applicant must establish that the evidence would have played an important role in their defence.

[317] If a s. 7 violation is established, the applicant must show that an abuse of process has occurred.

[318] Applying the law to the facts in this case, I first find that this lost evidence is not such that it would undermine the fairness of the trial. P.C. Urbas clearly told S.D. to wait until she was interviewed by the HTET before giving particulars about what happened to her. This makes sense. Moreover, while P.C. Urbas does not recall exactly what S.D. might have said in the back of the cruiser, the circumstances and the small length of time it took to take her to and back from the shelter to the police station, leads me to conclude that not a lot would have been said by S.D. The officers were merely transporting her to the station. They were not tasked with investigation or getting her statement. Indeed, they wanted to ensure that she spoke with the HTET and did not want her to get into her allegations with them.

[319] Next, I find that this lost or destroyed evidence appears to have little relevance. Again, the circumstances suggest that. The officers were simply transporting S.D. As a result, in my opinion, the degree of care to preserve the lost or destroyed recording would be significantly reduced.

[320] Given the lack of relevance, I would be minded to find that Mr. Myers has failed to establish any s. 7 violation. If there was negligence, it was not unacceptable negligence. Moreover, it was not a sufficiently serious departure from the duty to preserve evidence that it constitutes an abuse of process.

[321] On the other hand, the Crown has really failed to show that much care, if any, was taken to preserve this evidence. The video was uploaded as it normally is done. From there, I do not know really what happened to it. What reasonable steps were taken? Although S.D. was not in the same position as an accused person seated in the back seat of the cruiser, she was no ordinary witness. She was the complainant. She was also on her way to the station with the expectation that she was going make a serious criminal allegation against her pimp. Some degree of care should have been taken in preserving this evidence.

[322] Therefore, in the alternative, if I am wrong that no s. 7 violation occurred, I would go on and consider what the appropriate remedy should be. I find that a stay of proceedings is not the appropriate remedy. In Janeiro at para. 125, Paciocco J.A. stated:

A stay is a remedy of last resort, reserved for the clearest of cases where important evidence has been deliberately destroyed, where the unacceptable negligence is extreme enough to cause irreparable harm to the integrity of the justice system, or where the accused establishes that the loss of the evidence has irreparably deprived them of evidence without which they cannot effectively present a defence.

[323] None of the factors supporting a stay applies to this case. The video was not important evidence. It was not deliberately destroyed. The negligence was not extreme enough to cause irreparable harm to the integrity of the justice system. The loss of the evidence does not deprive Mr. Myers of evidence without which he was unable to effectively present a defence.

[324] In this case, Mr. Myers attacked the credibility and reliability of S.D. All the defendants did. They used her prior inconsistent statements. At times effectively. Like in Janeiro I would provide an alternative remedy by inferring the lost evidence would not have assisted the Crown. In the circumstances of this case, essentially this would be inferring the utterances of S.D. as recorded in the cruiser would not have assisted the Crown in the assessment of her reliability or credibility. In other words, they would have provided more ammunition regarding inconsistencies that she told the police.

[325] However, in this case, there were already several inconsistencies in S.D.’s statements to the police. Some very material and under oath. The adverse inference drawn on the basis of the s. 7 violation, does not make any difference to my assessment of the evidence including the assessment of S.D.’s credibility or reliability. As I have taken pains to set out above, I am very cognizant of the central issue in this prosecution and have done my best to resolve it. Another adverse statement by S.D. does not make any difference in my analysis. As I have tried to demonstrate, it is largely the confirmatory evidence that led me to the acceptance of S.D.’s testimony against Mr. Myers. This remains unaffected by the adverse inference.

[326] As a result, Mr. Myers’s application for a stay of proceedings is dismissed.

G. DISPOSITION

[327] Mr. Myers is found guilty of all counts except count 6. On the sexual assault charge, a motion for a directed verdict was granted.

[328] Mr. Musara is found not guilty of all counts except count 4. He will be found guilty of the offence under s. 286.2 of receiving a financial or other material benefit for sexual services.

[329] Mr. Nolan is found not guilty of all counts.

JUSTICE S. NAKATSURU

Released: May 25, 2022

COURT FILE NO.: CR-21-50000086-0000

DATE: 20220525

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

TAPIWA MUSARA, STEPHAN MYERS, DEVONE NOLAN

Defendants

REASONS FOR JUDGMENT

NAKATSURU J.

Released: May 25, 2022

[^1] There is no proven absence of motive. Of course, S.D. may well have some hidden motive to falsely accuse the defendants.