ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TYRONE DWAYNE MCEWAN
Defendant
K. Hutchinson, for the Crown
J. Lopez, for the Defendant
HEARD: May 9, 10, 11, 12, and 13, 2022
PUBLICATION BAN
Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.
REASONS FOR JUDGMENT
1Tyrone McEwan is charged with human trafficking related offences alleged to have been committed against M.M. The particulars of the charges are as follows:
Count 1 – That between May 1, 2018 and August 31, 2018, Mr. McEwan did recruit, transport, transfer, receive, hold, conceal or harbour M.M. or exercise control, direction or influence over the movements of M.M. for the purpose of exploiting or facilitating the exploitation of M.M., contrary to section 279.01(1) of the Criminal Code.
Count 2 - That between May 1, 2018 and August 31, 2018, Mr. McEwan did receive a financial or other material benefit, namely money, knowing that it was obtained by the commission of an offence under subsection 279.01(1) of the Criminal Code.
Count 3 – That between May 1, 2018 and August 31, 2018, Mr. McEwan did, for the purpose of committing or facilitating the commission of an offence under s.279.01(1) of the Criminal Code, withhold travel documents or documents that purport to establish the identity of M.M., namely Government issued identification, contrary to section 279.03(1) of the Criminal Code.
Count 4 - That between May 1, 2018 and August 31, 2018, Mr. McEwan did receive a financial or other material benefit, namely money, knowing that it was obtained by the commission of an offence under section 286.1(1) of the Criminal Code, contrary to section 286.2(1) of the Criminal Code.
Count 5 - That between May 1, 2018 and August 31, 2018, Mr. McEwan did, for the purpose of facilitating an offence under section 286.1(1), recruit, hold, conceal, harbour, or exercise control, direction or influence over the movements of M.M. contrary to section 286.3(1) of the Criminal Code.
Count 6 - That between May 1, 2018 and August 31, 2018, Mr. McEwan did by deceit, falsehood or other fraudulent means, defraud M.M. of money of a value not exceeding $5000 contrary to section 380(1) of the Criminal Code.
2On these charges, Mr. McEwan elected to proceed to trial before me without a jury. At the conclusion of the trial evidence, I heard focussed and helpful submissions from both counsel. I then reserved my decision and indicated I would provide reasons on a later date. These are those reasons.
I. Fundamental Legal Principles
3Mr. McEwan is presumed innocent of each and every charge in the indictment. The presumption of innocence is of fundamental importance in the criminal justice system as it serves to place the burden of proof squarely on the Crown and also serves to protect against wrongful conviction.
4The presumption of innocence stays with the defendant throughout the trial and is only displaced if I am satisfied that the Crown has proven the charges beyond a reasonable doubt. The Crown has the sole obligation or burden of proving each charge against the defendant. The defendant does not have an obligation to prove anything.
5Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence.
6While likely or even probable guilt is not enough, proof to a level of absolute certainty is not required as that standard is impossibly high. That said, while absolute certainty is an impossibly high standard, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.
7Ultimately, in order to convict the defendant of an offence, I must be sure that the defendant has committed the offence. If I am not sure, I must acquit.
II. Assessing Credibility and Reliability
8There is no magic formula that applies in determining whether a witness is telling the truth. Instead, the witness’ evidence is considered using an approach that is not tainted by myth, stereotype or unwarranted assumption. There are many factors that may be relevant in determining credibility. Some of the key factors include: whether the witness’ evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits; whether the witness has a bias or motive to give evidence that is more favourable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, what explanations are given for any inconsistencies and whether the inconsistencies suggest that the witness is lying.
9In this case, the Crown called the complainant M.M. to testify. Mr. McEwan also elected to give evidence. The Crown argues that M.M. is entirely credible and that her direct evidence supports a conviction beyond a reasonable doubt on each count in the indictment. Mr. McEwan testified and denied engaging in any of the alleged offences. His position is that he was merely a supportive friend to M.M. and offered her assistance in a time of need. He denies engaging in any human trafficking activities and further denies any involvement in defrauding M.M.
10Arriving at a verdict in this case requires that I determine issues of credibility and reliability. In other words, I have to decide whether the witnesses told the truth and if so, whether the witness’ evidence can be relied upon as accurate.
11However, and to be clear, this case is not simply a credibility contest between M.M. and Mr. McEwan. My task is not to simply decide whose evidence I prefer. Rather, my task is to decide whether the Crown has proven the case against Mr. McEwan on each charge beyond a reasonable doubt. In making this determination, I can accept some, none or all of any witness’ evidence. I may find that even though I prefer the evidence of M.M. over the evidence of the defendant, I am nonetheless left with a reasonable doubt about the guilt of the defendant. As well, after careful consideration of all the evidence, I may not know who to believe, in which case, I am also left with reasonable doubt.
12In accordance with the methodology set out by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, if I believe Mr. McEwan’s evidence, I must find him not guilty. If I do not believe his evidence, but I am left in a reasonable doubt by it, I must find him not guilty. Lastly, even if I completely reject his evidence, I must nonetheless look at the evidence which I do accept to determine whether the Crown has proven its case beyond a reasonable doubt.
13In considering the first two steps of the W.D. analysis, it is important that I consider Mr. McEwan’s evidence in the context of the evidence as a whole. In other words, the assessment is not simply whether the defendant’s evidence standing alone and without context is believed or leaves me with a reasonable doubt; see R. v. Carrière (2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 (Ont. C.A.) at para. 41, R. v. Hull, 2006 CanLII 26572 (ON CA), and R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.).
14As well, the second step of the W.D. analysis is important. It emphasizes the point that credibility assessments in a criminal case are not dichotomous. In other words, there is a third alternative between complete acceptance and complete rejection of a defendant’s evidence; see R. v. J.E., 2012 ONSC 3373 at para. 20 and R. v. J.M., 2018 ONSC 344 at paras. 9-20.
III. Review of Evidence
(a) Evidence of M.M.
15M.M. was the Crown’s only viva voce witness. Her evidence was supplemented by an Agreed Statement of Fact that included various documents relating to a stay at the Pinecrest Motel and documents relating to certain social assistance applications. Her evidence was also supplemented by security videos taken at the Pinecrest Motel.
16M.M. was 22 years old at the time of trial. She was 18 at the time of the alleged offences. She grew up with her mother and had very limited contact with her father. At age 16, she left home as a result of conflict with her mother. She quit high school after the first semester of grade 12 and while she has gone back to school on a couple of occasions, she has yet to complete her high school diploma.
17After leaving home, M.M. had limited financial resources and no communication with her family. She was living with an ex-boyfriend, but it was not an ideal situation.
18At some point, M.M. began working at Pure Pleasure Spa which was located at Jane Street and Weston Road. She was introduced to Mr. McEwan through a mutual friend Mika, who also worked at the same spa. M.M. had heard of Mr. McEwan through Mika who had “bragged” that Mr. McEwan had helped her out and put her in a very stable position. She began hanging out with Mika but soon noticed that other service providers at the spa did not want anything to do with Mika.
19One day, Mr. McEwan attended at the spa to pick up Mika. M.M. joined Mr. McEwan and Mika for a “smoke session” and they had a discussion. M.M.’s first impression of Mr. McEwan was that he had a “stable set up” and was achieving his goals. He presented as a “savvy businessman.”
20M.M. joined Mr. McEwan and Mika for further “smoke sessions” and their discussions continued. According to M.M., Mr. McEwan explained that he had helped Mika and they had achieved certain goals including owning a condo and a Mercedes. M.M. was told that the money Mika earned at the spa went towards the condo and the condo was then rented out on Airbnb. M.M. was also aware that Mika often had her hair done and ate at fancy restaurants.
21As a result of these discussions, M.M. learned that Mr. McEwan’s role was to “make those things happen.” Mika would tell Mr. McEwan what she wanted, and they would work together towards obtaining it. The money Mika gave to Mr. McEwan went towards the condo, car and other investments.
22According to M.M., Mika offered to ask Mr. McEwan if M.M could stay in the basement apartment with them. At the time, Mika knew of M.M.’s unstable living arrangements and the plan was to get M.M. in a stable situation while she continued to work at Pure Pleasure Spa with Mika.
23Mr. McEwan agreed to let M.M. rent a room in the basement apartment for $500 per month. M.M. believed that the room was in a home owned by Mr. McEwan, but when she moved in, she learned that the home was occupied by Mr. McEwan’s father.
24While at Pure Pleasure Spa, M.M. was earning approximately $1,000 per day and more on weekends. She turned over some of the money to Mr. McEwan but could not recall the amount. M.M. stayed at Pure Pleasure Spa for two to three weeks and explained that other workers at the spa did not like the fact that she was friends with Mika and Mr. McEwan. They told her to stay away.
25During further “smoke sessions”, M.M., Mika and Mr. McEwan would discuss the services provided at the spa. Mika explained that she provided certain services that made more sense financially. Mr. McEwan asked M.M. if she provided “extras” and she replied that she provided safe “extras”, meaning that she would use a condom.
26M.M. explained that the goal was for her to become more stable. She needed to obtain identification. She also believed that the money from the work at the spa was to be used to acquire a condo or a place to live. She understood that she would contribute money as would Mr. McEwan, and that the investment would yield an income which they could both share. M.M. was advised that she needed to invest $10,000 minimum. She believed that Mr. McEwan would match that amount so they would have $20,000 as a down payment for a condo. The plan was to list the condo on Airbnb. M.M. was to have the condo in her name and she was to be responsible for taking care of it. Mr. McEwan explained that they would “start small” and then undertake further investments. M.M. denied that the plan was simply to lease condos so they could be sublet on Airbnb.
27M.M. did not keep track of how much money she was giving Mr. McEwan but she did record how much cash she was making. After the relationship with Mr. McEwan ended, M.M. destroyed or got rid of the book where she recorded the amounts earned. She explained that she wanted to get rid of anything related to Mr. McEwan.
28Around this time, Mr. McEwan helped M.M. open a bank account at a TD Bank so that she had somewhere to put money aside. M.M. was the only person who had access to the account.
29M.M described the home she moved into as a “very fancy” brick home in a newly built area in Brampton. The basement apartment was accessed from a side-entrance and gate. While she only saw the upstairs of the home on one or two occasions, she knew that it was occupied by Mr. McEwan’s father, the father’s girlfriend or wife and their son.
30Mr. McEwan explained that he and his father owned the home together. He asked that the rent be paid directly to him and told M.M. that he would give the money to his father.
31In terms of the departure from Pure Pleasure Spa, M.M. explained that the working situation there had soured and Mika brought up the idea of moving to the Vaughan Spa. During their discussions, M.M. was advised that the Vaughan Spa had wealthier clients and permitted workers to provide services without a licence for a “free trial period”, after which if they were making money, they could get a licence and continue providing services. The intention was to find a safe place to work and make more money. The decision to move to the Vaughan Spa was made jointly by all three. Mr. McEwan explained that it would make no sense for M.M. to stay at Pure Pleasure Spa while Mika moved to Vaughan Spa as it would be inconvenient for him to drive to both locations. He suggested that they stick together as it made more sense financially from his perspective. M.M. agreed and felt that it was the best option for her in terms of achieving the goal of making $10,000 to pay towards the condo. The plan to purchase the condo mainly motivated her decision. M.M. wanted financial stability and independence. She also wanted to improve her surroundings. M.M. agreed that no one forced her to do anything. In the beginning she was treated very well by both Mika and Mr. McEwan. She looked up to Mr. McEwan as he was older and portrayed himself as successful. She followed his advice as she believed it was in her best interest.
32Despite the promise of better clientele, the move to Vaughan Spa was not fruitful. The clients preferred service providers they already knew. M.M. started working double shifts in order to make more money to reach their financial goals. M.M. explained that she was making less money at the Vaughan Spa. On a slow night she could make $240-$280. She would normally make less than $1,000. Mr. McEwan mentioned that there were other options, but many of these options involved establishments that had “high expectations.” He ultimately recommended staying at the Vaughan Spa as that was the best place for M.M. to work.
33In terms of how much money she gave to Mr. McEwan, M.M. explained that if she made under $500, she would provide it to Mr. McEwan and he would cover the costs of her “habits” which included marijuana. When she made over $500, she would give him $300 and keep the rest for herself. There were times when she would miss a shift and was fined $100 by the spa. M.M. could not clearly recall how much money she gave to Mr. McEwan.
34M.M explained that the services provided at Vaughan Spa were similar to those at Pure Pleasure Spa. That said, some of the service providers at Vaughan Spa would cater to specific fetishes. While there was no discussion with Mr. McEwan about fetishes, M.M noted that both Mika and Mr. McEwan suggested that she provide oral sex without a condom. M.M. was not comfortable doing that and declined. Mr. McEwan suggested that M.M. use the name “Honey” while at the Vaughan Spa as he thought the name better suited her.
35Initially, Mr. McEwan would drive both M.M. and Mika to work. Eventually, Mika started working at a strip club and Mr. McEwan was not always available to drive M.M. to work. On those occasions, M.M. took an UBER. She was advised that the cost of the UBER came out of her money.
36It was suggested to M.M. that she try working at the strip club as well. Mr. McEwan suggested that it would be in M.M.’s best interest and would help with their investment plan. M.M. told Mr. McEwan that she was not comfortable with stripping and he understood. He suggested that he would “try to find a girl” who could “show her the ropes.”
37While working at the Vaughan Spa, some tension arose between Mika and M.M. According to M.M., Mika felt that M.M. was supposed to be “her girl” and she told M.M. to stop giving her money to Mr. McEwan. M.M. raised this issue with Mr. McEwan who stated that he was in charge of arrangements including money, investments and travel. He explained that M.M. and Mika were to work together as friends. The tension between M.M. and Mika increased and the relationship devolved into petty hostilities.
38On one occasion, Mika and Mr. McEwan got into a physical altercation. The police were called by Mr. McEwan’s father. Following the altercation, M.M was advised by police that Mr. McEwan’s father was the homeowner and he wanted no one in the house. Mr. McEwan brought M.M. to stay at the Pinecrest Motel. At this time, M.M. had no friends she could reach out to. She had disconnected from friends at Pure Pleasure Spa. M.M also had very limited funds available to her, perhaps a couple hundred dollars in her bank account. She had given the rest of her money to Mr. McEwan.
39Mr. McEwan arranged for the stay at the Pinecrest Motel. The motel required a credit card and guests had to be a certain age. M.M was not of age and did not have her own credit card. While the motel was not very nice, Mr. McEwan told M.M. that it was temporary and that it was the best option for M.M until she made enough money to get her own place. Mr. McEwan also told M.M. that she would be paying for the motel and for transportation to and from the spa.
40M.M. resided at the Pinecrest Motel for approximately 1½ to 2 months. The nightly rate was $120. During this time, she was working at the Vaughan Spa. Mr. McEwan was not as present as he had been when they were residing in the basement of his father’s home. When he would attend, she would hand over money and at times he would provide her with marijuana. M.M. would give Mr. McEwan anything left over after paying for the motel, food and marijuana. She was uncertain as to how much money she would turn over. It was “hit and miss” and between $100 and $500. Some of her money went into a bank account, but she had to pay for her own transportation.
41While staying at the Pinecrest Motel, Mr. McEwan suggested that M.M. go to London, Ontario, with a friend of his who “had a girl.” M.M. believed that she would be going to London to provide sexual services in a hotel room in order to make more money. Mr. McEwan suggested that the trip would be a “better financial situation.”
42M.M. travelled to London with Mr. McEwan’s friend and another woman. They checked into a Holiday Inn and posted ads for sexual services on a website similar to Backpages. Business was not good in London and after discussing the matter with Mr. McEwan, a decision was made to return to Vaughan. On the way back, Mr. McEwan’s friend and the woman who was with them had a falling out. M.M and the woman were dropped off at the Pinecrest Motel. It was around 3:00 or 4:00 in the afternoon. The woman did not have a credit card and M.M did not have identification, so they were unable to get a room. M.M. began calling Mr. McEwan and he was not responding.
43Eventually, Mr. McEwan arrived at the motel and booked a room for M.M and the other woman. It was around 2:18 a.m. and M.M. had been in the parking lot of the motel for hours. Mr. McEwan said he would sort everything out with his friend. The following day, Mr. McEwan and his friend returned to the motel. The friend and the woman got into an argument and police were called as a result of a noise complaint. The police arrived and spoke with M.M. who had just finished work. She advised police that she was staying in the room and that it was in Mr. McEwan’s name. The police removed the other woman from the room. M.M. texted Mr. McEwan and was directed to walk up the street to a nearby dealership. Once there, she met Mr. McEwan and his friend. She was provided a cell phone that belonged to the woman and she returned it to the motel. Security video excerpts from the Pinecrest Motel captured portions of these interactions, including the check-in process with Mr. McEwan and the arrival of the police.
44The next day, M.M. went to work and was trying to get a hold of Mr. McEwan as she was unhappy about what had happened. She did not have enough money to pay for the room and she was kicked out. As she had nowhere to go and Mr. McEwan was not communicating with her, she slept in the spa for a few days.
45When M.M. managed to finally speak with Mr. McEwan, she told him that she had had enough with their arrangement and that she wanted out. She entered the arrangement looking for stability and hoping to have a better income and her own place and it had not worked out.
46When M.M. first met Mr. McEwan, she did not have personal identification. She had lost all of her ID when she was approximately 16 years of age. Mr. McEwan assisted M.M. in filling out forms to obtain a birth certificate and then a passport. The identification arrived at Mr. McEwan’s father’s house. While Mr. McEwan showed M.M. the identification documents, he held on to the documents himself. He explained that he would do so as she had lost her earlier identification. He also explained that he liked to travel spontaneously. According to M.M., whenever she needed her ID, Mr. McEwan would give her one document, but never both at the same time. While M.M. agreed that one reason why Mr. McEwan held her ID was because she had lost her earlier forms of ID, she explained that she was never comfortable with him holding all of her ID. She denied that the motivation to get the ID was because it was required for work at the spas. She explained that she trusted him with her ID and he explained that he did it with “all his girls.”
47M.M. also explained that she applied for social assistance as she needed money and was not covering her needs and the expenses associated with her work. It was Mr. McEwan’s suggestion to do so and he explained that he knew someone at the social assistance office who could assist with the application. Mr. McEwan went with her to submit the forms. The address on the forms was for a second home connected to Mr. McEwan. It was not a home that she was living at. The cheques would arrive at this home and Mr. McEwan would then take M.M. and the checks to a Cash Money outlet where she would cash the cheques. He would provide her with a piece of identification which she would return to him once the check was cashed. She would also turn over the money.
48When M.M told Mr. McEwan that she wanted to end their business relationship, he asked to meet her to discuss matters. He picked her up at the spa and told her they were going to a restaurant to get food. Instead, he drove her to a Cash Money outlet. Once there, he told her that she owed him money for all the things he did for her. He gave her one piece of ID.
49M.M. entered the Cash Money outlet and asked the attendant if he could lie for her and say that she needed two pieces of ID. She did this because she wanted to get both pieces of ID away from Mr. McEwan. When M.M. told Mr. McEwan that she needed two pieces of ID, he became angry and then entered the outlet himself with the ID. M.M. was handed the envelope with the cash and once they were back outside, a tussle ensued over the envelope and the ID. M.M. decided she was going to pepper spray Mr. McEwan and as she was about to do so, she saw him reach down in his car. As she knew that Mr. McEwan carried a gun in a side-bag, she was concerned that he was reaching for his gun. As this was happening, M.M.s’ friend pulled up in another car and brought the incident to an end.
50M.M. explained that while Mr. McEwan never threatened her with any violence, she had seen him get physical with Mika. She also knew that he carried the gun in his side-bag, though apart from the instance at Cash Money outlet, the gun did not concern her. She saw it in the side-bag on one occasion and on other occasions she handled the side-bag and could feel the weight of the gun. Mr. McEwan told her he kept the gun for his safety. In cross-examination, M.M. agreed that at the preliminary inquiry she testified that she never saw Mr. McEwan get violent with Mika. She explained that this was a memory that had returned. She denied adding in further details about the gun at trial in an attempt to make Mr. McEwan look bad.
51M.M. managed to get her passport from Mr. McEwan but observed that something had been done to the passport that made it “not viable.” She asked Mr. McEwan to return her other ID and then blocked his number.
52M.M. had not tracked how much money she had given him and assumed it would just be a write-off. When the relationship ended, she had approximately $200 in her bank account. When she returned to the motel to get her possessions, she was told that there were none. Her friend then spoke with the motel manager and convinced him to release her possessions which had been placed in garbage bags.
53In terms of her motivation for coming forward, M.M. denied that she became upset when she learned from social media that Mr. McEwan was successful. She explained that she was grateful that she managed to get away from him and her experience with him did not change her personality. She also denied that she had become jealous of Mika and more particularly, Mr. McEwan’s relationship with Mika.
54When asked about her decision to work with Mr. McEwan, M.M. explained that she made the decision to work for him. She understood from Mika that Mr. McEwan had helped other girls and could help her. While she agreed that she made her own decisions, she explained that she was influenced by what Mr. McEwan told her to do. She explained that there were some things that she did not want to do but was told it would be better for her, including the move to the Vaughan Spa. M.M. explained that she relied on and trusted Mr. McEwan. She believed it was supposed to be a mutual friendship and business. Instead, it was two older people putting a young person in a worse situation.
(b) Evidence of Tyrone McEwan
55Mr. McEwan is 33 years of age and is a Canadian citizen. He has a criminal record for failing to comply x3, unlawfully at large and obstruct police officers all relating to repeated instances of unlawful driving and the consequences thereof. He also has a conditional discharge for the offence of forgery stemming from the use of a friend’s driver’s licence. The last entry on his criminal record is in 2015.
56Mr. McEwan grew up in the United States. He returned to Canada at age 19. He is married and has five children. He has been employed as a security guard at a hospital and also at a construction equipment rental store.
57Mr. McEwan was in a relationship with Mika whom he had known for approximately 10 years. At the time, he was also married but had an open relationship. While Mr. McEwan knew that Mika worked at Pure Pleasure Spa, he denied any knowledge that it was an adult spa where sexual services were provided. He explained that it was a brick building with a door. He would drop Mika off in the back parking lot and had never had an occasion to see the front of the building which has a sign with the silhouette of woman’s body.
58While Mr. McEwan admitted knowing that Mika was involved in erotic massage, he claimed that he had never learned of “happy endings” from Mika. When confronted with his statement to police, Mr. McEwan agreed that he knew Mika provided “happy endings” as part of her massages.
59Mika was living in the basement of his father’s house located on Bonnieview Court in Brampton. She moved into the basement apartment in January or February of 2018, and the anticipation was that she would pay rent to Mr. McEwan’s father. His father also had another home on Vespahills Crescent, which was rented out to tenants. Mr. McEwan did construction work on both homes and helped out his father with property maintenance.
60Mr. McEwan met M.M. through Mika. M.M. soon moved into the basement apartment with Mika. According to Mr. McEwan, it was Mika who asked if M.M. could move in. Once M.M. moved in, the three of them would hang out, have fun and party. He explained that Mika and M.M. initially started a romantic relationship. Mr. McEwan denied initially knowing that M.M. was working at Pure Pleasure Spa. He explained that this was something he learned later once M.M moved in.
61Mr. McEwan agreed that he would pick up and drop off Mika and M.M at the Pure Pleasure Spa, but he always used the same entranceway into the parking lot and never really saw the front of the building.
62While Mr. McEwan agreed that he and Mika would re-list a leased condo on Airbnb in order to make money, he explained that this only lasted a short period of time as the landlord eventually put a stop to the plan. He agreed that he helped Mika manage the property for a share of the profits and further agreed that it was possible that M.M. had seen the condo. While not asked directly, it appears that Mr. McEwan never engaged M.M. in a similar discussion or plan to lease or own a condo as an investment.
63In terms of Mika’s departure from the basement apartment, Mr. McEwan explained that the situation was essentially a “love triangle” and there were jealousies and hostilities between Mika and M.M. over Mr. McEwan. The police attended during one fight where Mika was attacking and hitting Mr. McEwan. Mika eventually gave Mr. McEwan an ultimatum and Mr. McEwan preferred to mediate the issue rather than choose between Mika and M.M.
64After Mika left, Mr. McEwan’s father complained that he had not been paid rent and wanted everyone out of the home. The police attended a second time, when Mr. McEwan’s father decided that he no longer wanted anyone in the basement. Mr. McEwan explained that he went downstairs and told M.M. that she had to leave, and M.M. then packed her stuff.
65M.M. had nowhere to go and asked to go to a hotel. Mr. McEwan explained that she was “looking at me with a long face crying.” He decided he would help her, but he did not want her “racking up expenses” on his credit card, so he arranged for her to stay at the motel. In cross-examination, he explained that he did not want his wife to see hotel charges on his credit card.
66In relation to M.M.’s efforts to obtain identification, Mr. McEwan explained that she made the applications on her own. He was merely her driver as she did not have money to take an Uber. He explained that she had a passport already but was waiting for a photo card and birth certificate as she needed two pieces of ID to get a massage licence. He denied ever keeping her passport from her. He agreed that he discussed ID with her, but maintained that he only did so because she looked young and he wanted to make sure she had ID on her in case he was stopped by police while driving in a car with her. Mr. McEwan agreed that in his police statement, he stated that M.M. produced a birth certificate to him. While his memory was not clear, he explained that the birth certificate he saw was water damaged or torn and needed to be replaced.
67He further explained that the reason why the room at the motel was not in her name was because she was only 18 years old at the time and the motel policy was that guests had to be a minimum of 19 years old.
68Mr. McEwan also explained that it was M.M’s idea to apply for social assistance. He just drove her to the office and waited outside. He denied ever telling her that he had a contact within the social assistance office. He agreed that he had his father sign a form as M.M.’s landlord. The address used on the form was for Mr. McEwan’s father’s other residence and not the one where M.M. had been living at. Mr. McEwan explained that this address was used because former tenants of the other home were still using the address for their social assistance applications. Mr. McEwan’s attention was drawn to the date of the social assistance application, July 10, 2018, which is the same day that M.M. checked into the Pinecrest Motel and was no longer living at Mr. McEwan’s father’s home. In response, Mr. McEwan expressed the opinion that the documents had been tampered with. His attention was also drawn to the notation in the social assistance forms that states that the date of occupancy is July 15, 2018 and the date of receipt of the document is July 17, 2018, which would have been after the police attended at the Pinecrest Motel. Nonetheless, Mr. McEwan maintained that the social assistance documents were completed and submitted before M.M. ended up at the Pinecrest Motel.
69After M.M. left Mr. McEwan’s father’s basement, she was staying at the Pinecrest Motel. Mr. McEwan helped her out as a friend, but explained that he was not comfortable with her staying there with the room in his name. She kept extending her stay at the motel and he only travelled there once or twice to bring her marijuana.
70At a certain point, Mr. McEwan’s friend, Mr. McDougal, came into town. They all got together to smoke marijuana. M.M. was present and Mr. McDougal also had a woman with him. A discussion ensued and the idea of going to London, Ontario, was discussed. M.M. stated that she would go to London and Mr. McEwan was happy as he wanted her out of the motel room that was in his name. In cross-examination, Mr. McEwan agreed that he told police that he was the one who connected Mr. McDougal with the woman. Apparently, the woman had been the victim of a robbery and had indicated to Mr. McEwan that she wanted go “out west.” Mr. McEwan then introduced her to Mr. McDougal for that purpose. Mr. McEwan denied that this introduction happened while they were at the Pinecrest Motel. He explained that it had happened at some point earlier.
71According to Mr. McEwan, he called M.M. when she was in London in order to “check up on her.” She asked if her ID had arrived. Mr. McEwan maintained that at this point, she was no longer his concern. He was just glad that she had moved out of his motel room. Mr. McEwan denied any specific knowledge of what M.M. was doing in London and claimed he never spoke to her about it. He assumed it was either for work or to “clear her head.” He claims he did not ask Mr. McDougal what the purpose of the trip was either. He also denied having anything to do with the arrangement for accommodations in London, despite stating the contrary in his police statement.
72He did not speak with her again until he received a number of calls in the early morning hours when M.M. and the woman who was with Mr. McDougal were calling and complaining that Mr. McDougal had all of their belongings. They had tried to reach Mr. McDougal but he was not responding.
73In response to these calls, Mr. McEwan decided to offer help. He went to the Pinecrest Motel and obtained a room for them. M.M. and the other woman stayed at the hotel for a week. Mr. McEwan agreed that he dropped by “once or twice” to either drop off marijuana or simply check in with M.M. He also agreed that he would drop by for sex.
74While the room was in Mr. McEwan’s name, M.M. paid for it. Mr. McEwan explained he felt obligated to help her out. In cross-examination, it was suggested that the reason why Mr. McEwan was checking M.M. into the room was because she did not have ID. He maintained that she had her passport and the only issue with the motel was her age as she was not 19.
75On the Friday of that week, Mr. McDougal was to pick them up. Mr. McEwan was with Mr. McDougal at this time. Mr. McEwan explained that he wanted to make sure that the room in his name was properly checked out so he would not be responsible for any further expenses. He adamantly denied that he went to the motel because he had an interest in M.M.
76Once Mr. McEwan and Mr. McDougal were at a strip club near the motel, Mr. McEwan first learned that Mr. McDougal had the other woman’s phone. They arranged to meet M.M. at the spa that was nearby. The police called both Mr. McDougal and then Mr. McEwan. Mr. McDougal gave the cell phone to M.M. and told her to give it back to the other woman. As they drove back to the motel, they saw a number of police cars in the parking lot. Mr. McEwan denied entering the parking lot. He also disagreed with the suggestion that he was staying away from the situation because M.M. was working for him and now police were involved.
77According to Mr. McEwan, he advised M.M. that he was no longer comfortable with her staying at the motel. He also told her that as soon as her ID arrived, he would give it to her. After that day, his only reason to contact her was to give her the ID that had arrived at his father’s house.
78Once the ID arrived, Mr. McEwan arranged to go to Cash Money with M.M. His plan was to simply hand her the ID, but she started yelling and screaming. He had the window down in his car and noticed that she was reaching for bear spray. He exited the vehicle and placed the ID in her hands, and at that point noticed that she signalled someone to come over and he saw a car coming their way. He then drove away. He denied that he had her passport in his possession at this time. He agreed that he never told police about the bear spray.
79Mr. McEwan denied taking advantage of M.M. in any way. He maintained that this is not his “M.O.” He denied using M.M. to make money through the sex trade. He denied wanting to bring M.M. into any business or investment venture. He denied ever discussing the sex trade with M.M. He also denied controlling M.M.’s efforts to obtain ID and later controlling access to the ID. He denied showing her a gun. He denied doing all these things so that she would not want to leave him.
IV. Analysis and Findings
80I will start my analysis with some overall credibility and reliability findings. In accordance with W.D., I will start with Mr. McEwan’s evidence. I will then turn to the specific counts in the indictment and assess whether the Crown has proven each count beyond a reasonable doubt. In doing so, I will make further factual findings in relation to each count.
a. Overall Credibility and Reliability Findings
81Mr. McEwan’s evidence presents significant credibility problems. In short, I reject his evidence in its entirety except where it is corroborated by other evidence. His version of events is not only implausible, but it also suffers from significant internal and external inconsistencies.
82I reach this conclusion for the following reasons, inter alia:
a. Mr. McEwan attempted to distance himself from any admission of participation in or knowledge of the sex trade. He denied knowing that Pure Pleasure Spa was a location where sexual services were provided. He based his lack of knowledge on his claim of never having seen the front façade of the building. This claim is false. Mr. McEwan knew exactly what was going on at Pure Pleasure Spa.
b. Similarly, he attempted to deny knowledge of “happy endings” in the provision of massage services. This evidence was a contrived attempt to deny knowledge about the nature of the sexual services that Mika and M.M. were involved in.
c. He claimed to not know that M.M. was working at the spa until she moved in with his father. This claim was another attempt to deny knowledge. Mr. McEwan had attended at the spa regularly to pick up Mika and M.M. and was present for “smoke sessions” where the three had discussions relating to the sex trade.
d. Mr. McEwan described himself as a philanderer who, while married, carried on relationships with other women, including M.M. and Mika. Leaving aside Mr. McEwan’s philandering ways, the reality is that Mika and M.M. were Mr. McEwan’s “girls” and he was their “pimp.” The relationship with M.M. was not a romantic relationship in any realistic sense. His attempt to paint it as such was a transparent attempt to obfuscate the true nature of the relationship.
e. Mr. McEwan attempted to portray himself as an altruistic saviour bent on helping out M.M. in her time of need. In his evidence he made no mention of receiving a penny from her for anything. Yet, by his own account, he drove her to and from work, drove her around to get ID, arranged for her to rent a room at his father’s home, later arranged for her to stay at a motel room rented in his name, brought her marijuana, arranged for her to travel to London with his close friend and then he turned up at the motel in the middle of the night to arrange for a further stay. In short, Mr. McEwan wants the court to accept that he displayed a remarkable sense of altruism towards a person he barely knew and had only recently met. This suggestion defies logic and common sense. The reality is that Mr. McEwan was pimping M.M. and taking her money.
f. Mr. McEwan’s evidence in relation to the social assistance application was false. He explained that he had nothing to do with her application other than driving her to the office to file the application. Mr. McEwan explained that M.M. applied for social assistance while she was living with his father. However, when his attention was drawn to the dates on the documents which suggested that the application would have been completed and filed during the time frame when M.M. was living at the Pinecrest Motel, Mr. McEwan expressed the opinion that the documents had been tampered with. Nonetheless, he maintained that the social assistance application had been completed prior to M.M. moving into the motel. In addition, Mr. McEwan’s explanation for why the address of his father’s second home was used on the social assistance forms made no sense whatsoever. In short, it was another attempt to mislead the court.
g. Mr. McEwan’s explanation for the trip to London was less than credible. On his version of events, M.M. simply decided to join his close and trusted friend on a trip out to London with another woman who he had also introduced to his friend. When the idea of going to London came up, Mr. McEwan was happy as it meant that M.M. would leave the motel room that was in his name. He denied that he had any specific knowledge about what the purpose of the trip to London was, though he admitted to calling to “check in” with M.M. while she was there. He was also caught in a contradiction with his police statement wherein he admitted to arranging accommodations for the trip to London, which was a fact he denied in his evidence at trial. His entire explanation of this incident was contrived and obviously false.
83I turn next to M.M. I find that her evidence is credible and reliable. I accept her evidence in its entirety.
84She candidly and objectively acknowledged the nature and scope of her involvement in the events before the court. She did not attempt to minimize or excuse her conduct. She was cross-examined on potential motives for coming forward with the allegations against Mr. McEwan. Her answers in response made sense in the context of the evidence as a whole and I accept them.
85More significantly, M.M. was a witness who provided a compelling and logical account of her involvement with Mr. McEwan. She was not significantly impeached on any matter of substance.
86On the few occasions where she added new details to her evidence, I find that she was honestly recalling additional details. The most significant example of this was in relation to her trial testimony about observing Mr. McEwan get violent with Mika during a fight. M.M. agreed that at the preliminary inquiry she testified that she had not seen any violence. She explained that she was now trying to remember everything as accurately as possible and that was a detail she now recalled. I accept this explanation. This is not an instance where there exists a concern that the new details were delivered with an intent to paint the defendant in a bad light at trial.
87Lastly, while I acknowledge the significant limitations of testimonial demeanour, I was also impressed with her demeanour. She presented as a strong and clear minded witness who had a difficult and traumatic upbringing.
b. Count 1 - Human Trafficking
88Section 279.01(1) of the Code provides:
Trafficking in persons
279.01 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence…
89This offence provision requires proof of two main elements; the conduct and the purpose; see R. v. A.A., 2015 ONCA 558, at para. 79 and R. v. Gallone, 2019 ONCA 663 at para. 17. The conduct element can be established in a number of ways including exercising control, direction or influence over the movements of a person.
90The purpose element requires proof that the defendant’s conduct was for the purpose of exploiting or facilitating the exploitation of the person trafficked. In R. v. A.A., at para. 82, Watt J.A. suggests that the purpose element “extends beyond the intentional conduct that is the actus reus of the offence to what could be described as the object an accused seeks to attain, or the reason for which the conduct is done or the result intended”.
91It is important to note that in order for the offence to be established, it is not necessary that the defendant’s conduct actually result in exploitation, see Gallone at para. 54. It is sufficient if exploitation or the facilitation of exploitation is the purpose of the conduct: see R. v. A.A. at para. 85 and R. v. Urizar, 2013 QCCA 46, at para. 69.
92The meaning of the terms “exploiting” and “exploitation” as found in s. 279.01(1) of the Code can be discerned by reference to s. 279.04 of the Code, which provides:
Exploitation
279.04 (1) For the purposes of ss. 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.
Factors
(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.
93This statutory definition of “exploitation” suggests the following three conclusions as set out in para. 70 of R. v. A.A.:
a. The expectation of the specific belief engendered by the accused’s conduct must be reasonable, thus introducing an objective element;
b. The determination of the expectation is to be made on the basis of all the circumstances; and,
c. The person’s safety need not actually be threatened.
94As such, the issue in terms of exploitation is whether Mr. McEwan’s conduct could reasonably have been expected to cause M.M. to believe that her own safety would be threatened if she failed to continue to offer sexual services.
95The term “safety” as it appears in s. 279.04 relates to protection from both physical and psychological harm: see R. v. A.A. at para. 71 and R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72 at p. 81. The factors that might be relevant in assessing whether conduct could reasonably be expected to cause a complainant to fear for her safety are set out in R. v. Sinclair, 2020 ONCA 61 at para. 15 as follows:
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 of 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.
See also R. v. Crosdale, 2018 ONCJ 800 at para. 149.
96The issue of whether Mr. McEwan’s conduct could reasonably have been expected to cause M.M. to believe that her own safety would be threatened if she failed to continue to offer sexual services is relevant insofar as it sheds light on what Mr. McEwan’s purpose was when he engaged in the specific forms of conduct, see R. v. McDougal, 2021 ONSC 2413 at para. 97. As Watt J.A. explains in R. v. A.A. at para 87:
To reiterate, in considering whether the offence under s. 279.011(1) is established, the analysis does not end at whether there was actual exploitation. In cases where exploitation, as defined in s. 279.04, arises from the facts, inferring that the accused’s purpose was to exploit the victim will usually be a relatively straightforward task. In cases where the facts do not lend themselves to a finding of actual exploitation, the definition of exploitation in s. 279.04 informs the court’s analysis of whether the accused was acting with the requisite purpose when he or she committed one of the listed acts. However, it does not become an essential element of the offence.
97I turn next to assessing the evidence to determine whether the Crown has proven this offence beyond a reasonable doubt.
98First, I consider whether Mr. McEwan engaged in any of the prohibited forms of conduct. The Crown argues that Mr. McEwan engaged in recruiting, transferring and harbouring M.M. The Crown also argues that he exercised control, direction or influence over her movements.
99I will focus on whether Mr. McEwan exercised control, direction or influence over the movements of M.M. On this issue, I note that in Gallone at para. 47, the Court of Appeal offered the following direction on the phrase “exercising control, direction or influence”:
47… I would define “exercises influence” over the movements of a person for the purposes of s. 279.01(1) as something less coercive than “exercises direction”. Exercising influence over a person’s movements means doing anything to affect the person’s movements. Influence can be exerted while still allowing scope for the person’s free will to operate. This would include anything done to induce, alter, sway, or affect the will of the complainant. Thus, if exercising control is like giving an order that the person has little choice but to obey, and exercising direction is like imposing a rule that the person should follow, then exercising influence is like proposing an idea and persuading the person to adopt it.
100More recently, in R. v. Ochrym, 2021 ONCA 48, the Court of Appeal provided the following additional guidance, albeit in the context of an offence under s. 286.3(1) of the Code:
30The statement at para. 47 of Gallone that “[e]xercising influence over a person’s movements means doing anything to affect the person’s movements” cannot be read in isolation. The balance of para. 47 and para. 50, reproduced below, indicate that in considering whether what an accused did amounted to exercising control, direction or influence over the movements of a complainant, regard must be had to the nature of the relationship between the accused and complainant:
…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[.]
101When I consider the facts of this case against the legal framework, I am satisfied beyond a reasonable doubt that Mr. McEwan engaged in at least one form of prohibited conduct, namely that he exercised influence over M.M.’s movements.
102The context of the relationship is very important. When they first met, M.M. was already providing sexual services at the Pure Pleasure Spa. She was 18 years of age. She was living with an ex-boyfriend in a less than ideal situation. She had no identification, having lost it when she was 16 years old. She had very limited financial resources. She lacked stability and had no family support. She was essentially isolated. Most importantly, she longed to break out of the cycle she was in. In short, she was extremely vulnerable.
103Mr. McEwan portrayed himself as a savvy businessperson who was very successful. He was significantly older than M.M., he had access to funds and a car, and lived in a very large home. Mr. McEwan was in a relationship with Mika and the message conveyed to M.M. was that Mr. McEwan had provided financial reward and stability to Mika.
104Mr. McEwan convinced M.M. that he would help her pursue her goal of financial and personal stability by promising that her money would go towards an investment in a condo. This goal was similar to the goal he had achieved with Mika. I find that he offered M.M. a lifeline through which she could achieve the goals of financial and personal stability.
105Once their relationship started, Mr. McEwan arranged for M.M. to live in the basement of his father’s home. Once that arrangement came to an end, he arranged for her to stay in a motel and put the room in his name. In short order, M.M.’s living arrangements were tied directly to Mr. McEwan. She had no where else to go. Indeed, Mr. McEwan’s own evidence was that M.M. was in tears when he told her she had to leave his father’s basement.
106Within the context of this relationship, there are several instances where Mr. McEwan exercised influence over the movements of M.M. First, I find that he influenced her movement from Pure Pleasure Spa to Vaughan Spa. This is an instance where Mr. McEwan influenced the move to a different spa because he believed it would allow M.M. to make more money, which he would receive. He also explained to her that it made more sense to move there, as he would not be in a position to continue driving her to Pure Pleasure Spa once Mika moved to the Vaughan Spa. While M.M. described the decision to move to Vaughan Spa as a “mutual decision” between herself, Mika and Mr. McEwan, the “mutual decision” must be viewed in context. It was a decision connected to the promised goal of the condo investment and to the need to make more money in pursuit of that goal. While she ultimately agreed to go, I find that but for his influence, she would not have moved from Pure Pleasure Spa.
107I also find that the trip to London is another example of influencing, if not outright directing, M.M.’s movements. I find the reason for the trip was because M.M. was not earning enough money at the Vaughan Spa. I find that Mr. McEwan decided he would send M.M. with his friend Mr. McDougal to London to offer sexual services from a motel room using ads posted online. I find that Mr. McEwan directed, and at the very least influenced this trip as a means of having M.M. earn more money. I entirely reject his evidence that he did not really know the purpose of the trip. I accept M.M.’s evidence as to how the trip unfolded.
108Lastly, I find that the move to the Pinecrest Motel is another instance where Mr. McEwan influenced the movements of M.M. Once she could no longer stay in the basement of Mr. McEwan’s father’s home, it was Mr. McEwan’s idea to put her up in a motel. This was not altruistic. I find that he did this because of the business relationship he had with her. In short, he did not want her to get away. He wanted to keep her working so she could earn money for him.
109In reaching these findings, I note that M.M. was candid in her evidence that she was not compelled or forced to make these moves. She explained that she made her own decisions, and indeed she also declined some of his suggestions, like working at a strip club or performing oral sex without a condom. Nonetheless, I accept her evidence that she felt influenced by Mr. McEwan. Moreover, I accept that when the relationship is viewed in context, the “suggestions” made by Mr. McEwan were made under the promise of an escape from a lifestyle of poverty and insecurity. Viewed in this context, I am satisfied beyond a reasonable that he exercised coercive influence over the movements of M.M.
110I turn next to the issue of his purpose in exercising influence over the movements of M.M. I remind myself that I must focus on Mr. McEwan’s purpose, and not only on whether M.M. was exploited as that term is defined in the Code.
111I begin by looking at whether all of the circumstances here would have reasonably caused someone in M.M.’s position to fear for their safety. In considering the factors listed in Sinclair, I note the following:
a. M.M. was acutely vulnerable. She was young. She was economically disadvantaged. She did not have family support.
b. M.M. was isolated. She did not have a peer group or friends that she could count on.
c. She did not have a stable residence. She lived in Mr. McEwan’s father’s basement and later in a motel room he arranged. When she was kicked out of the motel room, she slept in the spa where she was working. She retrieved all of her possessions from the motel in a couple of garbage bags.
d. As I will discuss in relation to the allegation of fraud, M.M. was deceived into thinking that the money she turned over was for the purpose of a condo investment that would provide her with financial stability and a way out of the sex industry.
e. M.M.’s profit from providing sexual services, above her bare living expenses, went mainly, if not entirely, to Mr. McEwan. When M.M. was not earning enough money in the sex trade, Mr. McEwan arranged for her to apply for social assistance and he took that money as well.
f. Access to M.M.’s identification was controlled by Mr. McEwan. She did not have possession of her ID and passport.
g. While there is no suggestion of violence or threats by Mr. McEwan, M.M. was aware that Mr. McEwan carried a gun for protection. That said, it was only during their final interaction where she subjectively became concerned that he may use it.
112In her testimony, M.M. never described being in fear for her physical safety. This is not determinative as the test has an objective element. Nonetheless, it is a factor to consider in conducting the objective analysis.
113When I consider the factors listed above as a whole, I am satisfied that a person in M.M.’s position would reasonably fear for their safety from both a psychological and physical perspective. I find that a person in M.M.’s position would fear that unless they continued to provide sexual services, they would have no hope of attaining the financial and personal stability promised, but more importantly would be left homeless, without money and without identification. A person in M.M.’s position would also be aware that he carried a firearm and was not above using violence. On this last point, I accept M.M.’s evidence that she observed Mr. McEwan use violence against Mika. I am not troubled by the manner in which this recollection unfolded. As stated earlier, I do not find that it was a late-breaking recollection aimed at making Mr. McEwan look bad at trial.
114When I consider the evidence relating to purpose, I am satisfied that Mr. McEwan’s purpose for exercising influence over M.M.’s movements was to exploit her. In other words, his purpose was to make her believe that her safety, from a psychological and physical perspective, would be threatened if she did not keep providing sexual services. Mr. McEwan used the promise of an exit from her disadvantaged and vulnerable state as a means of influencing her movements and her continued participation in the provision of sexual services. Mr. McEwan would have been acutely aware of her personal circumstances, including the fact that she had nowhere to live, had no ID and had little or no money. He portrayed himself as a successful businessperson who carried a gun for protection. He convinced her that he could provide her with a way out. He pitched the idea of a joint venture with shared profit in the condo purchase. The idea was a deception that was used to take her money.
115Mr. McEwan’s purpose was to craft a scenario which would cause M.M. to believe that if she continued providing sexual services, she would have an opportunity to attain financial and personal stability. Conversely, if she did not continue to provide sexual services, she would face the prospect of being homeless, penniless and without identification. I find that Mr. McEwan’s intent was to prey on M.M.’s vulnerabilities and use them as a tool against her. His purpose in influencing her movements was exploitative.
116I find him guilty on Count 1.
b. Count 2 and Count 4 – Receive Financial Benefit
117Counts 2 and 4 are related counts. They both allege that Mr. McEwan received financial benefits from M.M.
118As particularized in the indictment, Count 2 alleges an offence under s. 279.02(1) of the Code which requires proof beyond a reasonable doubt that the defendant received a financial benefit in circumstances where he knew that the benefit was obtained by the commission of an offence contrary to s. 279.01(1) of the Code, which is the offence of human trafficking.
119Count 4 alleges an offence under s. 286.2(1) of the Code which requires proof beyond a reasonable doubt that the defendant received a financial benefit in circumstances where he knew that the benefit was obtained by the commission of an offence under s.286.1(1) which is the offence of obtaining sexual services for consideration.
120The offence provision under s. 279.02(1) contains no exceptions limiting liability. In other words, if the Crown proves receipt of a benefit and the requisite knowledge as to its source, a conviction follows.
121The offence provision under s. 286.2(1) is subject to statutory exceptions as set out in s. 286.2(4). If any of these exceptions apply, the defendant is not liable. The listed exceptions are themselves also subject to exceptions which if applicable, act to restore liability, see s. 286.4(5) of the Code.
122There is no statutory definition of “benefit” in the Code. However, in R. v. Esho and Jajou, 2017 ONSC 6152, MacDonnell J. provided some guidance on this issue. He concluded that Parliament’s intention in enacting s. 286.2(1) was “to narrow the range of prohibited conduct to behaviour that was truly exploitative.” He concluded as follows at para. 123:
The scope of s. 286.2(1) must be interpreted with Parliament’s purpose in mind and by reading the words chosen to give effect to that purpose in their grammatical and ordinary sense: R. v. Jarvis, 2002 SCC 73, at paragraph 77. Parliament has not prohibited the receipt of anything at all from a prostitute, if it is derived directly or indirectly from the provision of sexual services; what it has prohibited is the receipt of a benefit. The word “benefit” is not defined in the Criminal Code. In its ordinary sense, a benefit is an advantage or profit gained from something. Generally speaking, the receipt of something of value from someone else will be a “benefit”, but not always. If, for example, a person who has borrowed $100 from a friend pays it back without interest a week later, the friend could not be said to have gained an advantage or made a profit. The repayment would not amount to the receipt of a benefit. And if the person who borrowed the money was a prostitute and repaid the loan with earnings from prostitution the person who was repaid would not, in my opinion, have received “a financial or other material benefit… that [was] derived directly or indirectly” from a prostitution offence. Parliament’s focus on the receipt of benefits is consistent with the purpose underlying both that provision and the former s. 212(1)(j), namely to target parasitic behaviour.
123I accept beyond a reasonable doubt that M.M.’s only source of income, apart from the social assistance payments that arose later in the relationship, was the provision of sexual services at the spas and elsewhere.
124I also accept that she would turn over most, and on some occasions all of the money she made by providing sexual services, to Mr. McEwan. I find that Mr. McEwan disgorged most of the profits made by M.M. through the provision of sexual services. M.M. turned over her money to Mr. McEwan as part of what she believed was a joint business venture premised on a promise of future investment potential and financial stability.
125As such, I have no hesitation finding that Mr. McEwan received a financial benefit from M.M.
126In relation specifically to Count 4, I am satisfied that Mr. McEwan had subjective knowledge that M.M. was earning her money by providing sexual services. I accept her evidence on this issue without reservation. M.M. and Mika were openly engaged in providing sexual services. Mr. McEwan was present for and directly involved in many discussions about the provision of sexual services. He also drove M.M. and Mika to and from the spas where they were working. I reject as a complete fabrication Mr. McEwan’s assertion that he did not know that Pure Pleasures Spa was a location where sexual services were provided. His attempt to deny knowledge based on his claim to have never seen the front façade of the establishment defies common sense and logic. He clearly knew what they were doing and where they were doing it.
127There is no suggestion in either the evidence or the submissions of counsel that any of the statutory exceptions apply in this case. Indeed, Mr. McEwan’s evidence suggests that he, at all times, acted altruistically to help out M.M. in a time of need. There is no suggestion in his evidence that he received any money from M.M. at any time and for any purpose.
128Ultimately, I am satisfied beyond a reasonable doubt that Mr. McEwan received a financial benefit knowing that the source of the benefit was the commission of an offence relating to the provision of sexual services under s. 286.1 of the Code. I find Mr. McEwan guilty on Count 4.
129In relation to Count 2, based on my findings in relation to Count 1, I am also satisfied that Mr. McEwan knew that the financial benefit was obtained by the commission of an offence under s. 279.01(1) of the Code. M.M. provided a financial benefit to Mr. McEwan stemming from sexual services she provided when her movements were influenced by Mr. McEwan, whose purpose in influencing those movements was exploitative. I find Mr. McEwan guilty on Count 2.
c. Count 3 – Withhold Travel Documents
130The offence under s. 279.03(2) of the Code alleged in this case requires proof beyond a reasonable doubt that the defendant, for the purpose of committing or facilitating an offence under s. 279.01(1) of the Code, withheld travel documents or government issued identification belonging to M.M.
131On this count, I find that Mr. McEwan assisted M.M. in obtaining identification documents including a birth certificate and passport. I find the timing of the issuance of these documents suggests that the birth certificate was issued first and then the passport. The timing also makes sense as the birth certificate would likely have been used to obtain the passport, and not the other way around.
132I find that Mr. McEwan maintained possession of these documents. I accept M.M.’s evidence that he would only let her have one document at a time, but never both at the same time. I accept M.M.’s evidence in relation to the final interaction at the Cash Money outlet. In particular, I accept that M.M. was attempting to get both pieces of ID from Mr. McEwan because she wanted to end the relationship. I further accept her evidence that he became angry and entered the outlet with her, rather than surrendering her ID to her.
133I also consider M.M.’s evidence that one of the reasons Mr. McEwan held on to her ID was because she had lost her earlier ID. While this may have been a consideration, I am not left in any doubt about the nature of Mr. McEwan’s possession of the ID over the length of their relationship. M.M. was clear that she did not feel comfortable with Mr. McEwan keeping all her ID. I accept her evidence on this issue.
134I reject Mr. McEwan’s evidence that M.M. always had her passport in her possession, and that the only item of ID that arrived at his father’s house was a birth certificate or photo ID of some sort. The dates of issue on the ID suggest that this is false.
135I further reject Mr. McEwan’s evidence that he was initially concerned about the fact that M.M. looked young, and he was worried about getting stopped by police and having questions directed at her age. This evidence is contrived to explain why Mr. McEwan was interested in what ID she had. As well, I find that Mr. McEwan was caught in a lie about the birth certificate when confronted by his police statement wherein he admitted that M.M. had produced a birth certificate to him. He attempted to explain this inconsistency by stating that the birth certificate she produced was either torn or water damaged and needed to be replaced. This was an obvious attempt to explain away a problem with his evidence.
136Lastly, I also reject Mr. McEwan’s assertions that the purpose of the final meeting was to turn over her ID, which had recently arrived at his father’s house. Viewed in context, this claim makes no sense. It is contrived and false. The purpose of this visit was to get M.M. to cash her social assistance cheque and hand over the money to Mr. McEwan.
137When this evidence is taken together, I am satisfied beyond a reasonable doubt that Mr. McEwan withheld M.M.’s ID. The next issue is whether he did this for the purpose of committing or facilitating an offence under s. 279.01(1) of the Code. As indicated in relation to my analysis on Count 1, the retention of the ID was part and parcel of Mr. McEwan’s modus operandi in relation to M.M. I find that it was one of the means he used to exercise coercive influence and control over M.M. Again, the context of the relationship is important. M.M. was acutely vulnerable. She had nowhere to go. She had no money. He maintained custody of her identification. This was intended to restrict her ability to simply end their relationship and move on. It gave him a further element of control over her. It would have contributed to the imperilling of her psychological and physical safety.
138Viewed in this context, I am satisfied beyond a reasonable doubt that Mr. McEwan withheld M.M.’s ID as a means of committing an offence under s.279.01(1).
139I find him guilty of Count 3.
d. Count 5 - Procuring
140Count 5 alleges an offence under s. 286.3(1) of the Code, which is commonly referred to as “Procuring.” The actus reus of this offence can be established in one of the following ways, see R. v. Gallone:
a. by procuring a person to offer or provide sexual services for consideration; or,
b. by recruiting, holding, concealing or harbouring a person who offers or provides sexual services for consideration or by exercising control, direction or influence over the movements of a person who offers or provides sexual services for consideration.
141In relation to the second means of committing the offence, the listed methods are disjunctive and have different meanings, see Gallone at para. 71. The Crown is only required to prove one of the particularized means of committing the offence.
142In this case the charge against Mr. McEwan has been particularized to allege that he committed the offence under s. 286.3(1) of the Code, by recruiting, holding, concealing or harbouring, or exercising control, direction or influence over the movements of M.M., for the purpose of facilitating an offence under s. 286.1(1).
143The mens rea for this offence will be established where the Crown proves beyond a reasonable doubt that the defendant intended to do anything that satisfies the actus reus of the offence in relation to a person who offers or provides sexual services, and that the defendant did so for the purpose of facilitating an offence under s. 286.1(1) of the Code which is the offence of purchasing sexual services.
144As mentioned above in relation to Count 1, I am directed by the comments of the Court of Appeal in Gallone and Ochrym on the meaning that is ascribed to the phrase “exercising control, direction or influence.” In view of my findings on Count 1, which I apply here, I am satisfied beyond a reasonable doubt that Mr. McEwan exercised coercive influence over the movements of M.M. for the purpose of facilitating an offence under s. 286.1(1). Mr. McEwan’s exercise of coercive influence was aimed at ensuring that M.M. continued providing sexual services for money.
145I find Mr. McEwan guilty of Count 5.
c. Count 6 – Fraud Under $5000
146The offence of fraud requires proof beyond a reasonable doubt that the defendant engaged in an act or acts of deceit, falsehood or other fraudulent means that resulted in a deprivation or risk of deprivation to the complainant. The mental element of the offence requires subjective knowledge of the prohibited act and subjective knowledge that the performance of the prohibited act could have as a consequence the deprivation or risk of deprivation, see R. v. Theroux (1993), 1993 CanLII 134 (SCC), 79 C.C.C. (3d) 449 (S.C.C.) and R. v. Zlatic (1993), 1993 CanLII 135 (SCC), 79 C.C.C. (3d) 466 (S.C.C.).
147In the circumstances of this case, the count of fraud under $5,000 relates to the condo investment scheme that M.M. claims was offered to her by Mr. McEwan. Mr. McEwan does not admit to receiving any money from M.M. Implicit in his evidence is a denial that there ever existed a plan to receive money from M.M. for the purpose of investing it in a condo that was to be rented out on Airbnb for investment purposes.
148I reject Mr. McEwan’s denial of this offence. His evidence does not raise a reasonable doubt. As indicated, I have already found beyond a reasonable doubt that M.M. gave most of her money earned in the sex trade to Mr. McEwan. Not a penny of that money was accounted for nor was a penny of it returned.
149I find that one of the reasons why M.M. gave her money so readily to Mr. McEwan was the promise by Mr. McEwan that the money would be saved up and invested in a condo purchase. This was the lure that Mr. McEwan dangled before M.M. who at the time was young and without stable finances or living arrangements. It was essentially an offer of a stable and financially independent lifestyle. This offer was used to entice M.M. to enter into a false or fraudulent investment arrangement with Mr. McEwan that included transferring the money she earned in the sex trade to Mr. McEwan. I find that Mr. McEwan never had any intention of buying a property or entering into any other legitimate investment enterprise with M.M.
150Further, I accept the evidence that Mr. McEwan had a similar, perhaps legitimate arrangement with Mika, using a rented condo instead of a purchased one. I find that Mr. McEwan used the arrangement with Mika as means of establishing his credibility as a businessperson. I accept M.M.’s evidence that she was impressed by Mr. McEwan’s business acumen, and she essentially saw him as a way out of her meagre circumstances.
151I am satisfied that Mr. McEwan engaged in an intentionally fraudulent and dishonest scheme to take M.M.’s money. I further find that M.M. gave Mr. McEwan her earnings under the false impression that she was contributing to an investment scheme. While I cannot quantify the exact loss to M.M., I accept her estimates of her average earnings over the period of her relationship with Mr. McEwan. As such, I find that the loss was, at the very least, several thousand dollars. I further find that this would have represented a significant portion of M.M.’s income at the time.
152Mr. McEwan is guilty on Count 6.
V. Conclusion
153I am satisfied beyond a reasonable doubt that the Crown has proven each charge against Mr. McEwan and as a result, I find him guilty on all counts.
J. Di Luca J.
Released: July 21, 2022
NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Judgment and takes precedence over the oral Reasons read into the record.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TYRONE DWAYNE MCEWAN
Defendant
REASONS FOR JUDGMENT
The Honourable Justice J. Di Luca
Released: July 21, 2022