ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-19-1630
DATE: 20221223
BETWEEN:
HIS MAJESTY THE KING
Julia De Vuono, for the Crown
- and -
K.P.
Alison Craig, for the Accused
HEARD: October 17, 18, 19, 20 & 21, 2022
REASONS FOR DECISION
BALTMAN J.
Introduction
[1] On February 3, 2017, K.W., then 19 years old, ran into the street in bare feet and without a jacket, pleading for help while trying to flag down passing vehicles. She was visibly beaten and bruised. Mr. Faraz Zaidi, who was driving by, stopped to rescue her, and then called 911. That night, K.W. gave a statement to police advising that K.P. had confined her in a nearby townhome from which she had escaped, forced her to sell sexual services over several months for his benefit, and beat her repeatedly.
[2] K.P. now faces numerous human trafficking and violence charges said to have occurred between May 2016 and February 2017. There are two alleged victims: K.W. and S.D., another woman who was purportedly providing sexual services for K.P.’s benefit.
[3] S.D. has disappeared. Before police lost track of her, she gave a KGB statement implicating K.P. that the Crown sought to have admitted for its truth, pursuant to the principles in R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 and R. v. Khelawon, 2006 SCC 57. In a previous decision, I ruled S.D.’s statement inadmissible: R. v. K.P., 2022 ONSC 7114.
[4] The trial thus proceeded based primarily on the allegations of K.W., and consisted of 14 charges:
Count 1: Procuring (S.D.), s. 286.3(1)
Count 2: Financial Benefit from Sexual Services (S.D.), s. 286.2(1)
Count 3: Assault (S.D.), s. 266
Count 4: Procuring (K.W.), s. 286.3(1)
Count 5: Financial Benefit from Sexual Services (K.W.), s. 286.2(1)
Count 6: Human Trafficking (K.W.), s. 279.01
Count 7: Financial Benefit from Human Trafficking (K.W.), s. 279.02
Count 8: Withholding of Documents (K.W.), s. 279.03
Count 9: Assault (K.W.), s. 266
Count 10: Forcible Confinement (K.W.), s. 279(2)
Count 11: Choking (K.W.), s. 246(a)
Count 12: Assault Causing Bodily Harm (K.W.), s. 267(b)
Count 13: Uttering Threat (K.W.), s. 264.1(1)(a)
Count 14: Sexual Assault (K.W.), s. 271
[5] After the evidence was concluded, the Crown invited the dismissal of Count 8 (withholding of documents), based on an absence of evidence.
Guiding Legal Principles
[6] K.P. is presumed innocent of each and every charge in the indictment. That presumption remains with him the entire 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 of proving each charge against K.P. He is not obliged to prove anything.
[7] Proof beyond a reasonable doubt is a very high legal standard. It must be a doubt based on reason and common sense, and is logically derived from the evidence or the absence of evidence. While likely or probable guilt is not enough, proof to a level of absolute certainty is not required as that standard is impossibly high. That said, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities: see R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.
[8] Ultimately, in order to convict K.P. of an offence, I must be sure that he has committed the offence. If I am not sure, I must acquit.
Overview of the Evidence
Evidence of K.W.
[9] K.W. is currently 24 years old. She was raised in Halifax, Nova Scotia. At some point she left high school and began working in a hotel. In January 2016, at the age of 17, she met K.P. He was then 25 years old and unemployed. They embarked on a romantic relationship.
[10] After K.W. turned 18, she and K.P. discussed her becoming a sex worker so that she could earn more money. She disliked her hotel job and had relatives who had worked in the sex trade – “It’s just common where we’re from.” She and K.P. agreed that it was a good idea – they needed money, and “it would help us a lot”.
[11] K.W. initially “learned the ropes” from another sex worker - “Taylor” - who she knew socially. Taylor taught her how to create ads and post them online. K.W. decided what sex services would be offered in her ads and communicated with the clients. However, K.P. generally directed her work activities: “He would just kind of tell me when he wanted me to…get a hotel or whatever.”
[12] K.W. willingly gave all her earnings to K.P.: “I wanted to give him everything…I felt responsible for us, needed to take care of us, needed to make money.” He did not permit her to keep any money for herself. At one point he became convinced she was holding back money. He confronted her on an outdoor pathway near his mother’s house, and punched her in the stomach repeatedly.
[13] K.P. told her what prices to charge for sex services. He expected her to earn as much as she could each day. She felt responsible for earning money for him: “that was my family, he made me feel like he was my family.” Typically, she earned approximately $1,000 per day. At times when customers were scarce, he directed her to lower her prices, and she complied.
[14] In summer 2016 they relocated to Ontario, along with S.D., another sex worker who was working for K.P. The move was instigated by K.P., who believed they could earn more money in Ontario. They initially stayed in a hotel, where she and S.D. provided sex services. At one point the police interviewed her at the motel she was working at, in response to a phone call from her Aunt in Nova Scotia advising her family was concerned when she left without notice. She told the police she was there on her own free will and had no concerns for her safety. By then she was in fact concerned, “but I was able to care about him more.”
[15] Eventually the three of them got their “own place”, a townhouse on Bristol Road in Mississauga that was rented by K.P. He signed the lease for the townhouse. All three of them moved into the townhouse.
[16] She and S.D. continued to do sex work in hotels. K.P. decided what days they could work and what days they had off. He demanded that they turn over to him all the proceeds. However, she and S.D. always booked the hotel rooms in their own names, so that K.P.’s name would not be “attached to anything”. As she explained it, “we didn’t want him to get into trouble.”
[17] K.P. imposed certain restrictions on their work, e.g., they were not to do “bare stuff”, i.e., sexual services without a condom. They were not to accept Black clients, in case they turned out to be competing pimps who might try to lure them away.
[18] Other than small amounts of cash that she retained from her earnings to buy meals, K.W. was expected to turn over all her income to K.P., and did so. He paid the monthly rent (approximately $2,000) and any utilities that were not included. If she needed new clothing he would take her out shopping. She did not have a credit card.
[19] On a few occasions, they travelled back to Nova Scotia for a visit. She did not express concerns to her family about K.P. because, even though they had contacted the police, she did not perceive them as sincerely interested in her well-being: “Interested in helping and actually helping are two different things.”
[20] At one point she and K.P. had a huge argument. She called the police because she was scared to re-enter the townhouse. The police waited for her to enter and retrieve her clothing, and then drove her to the airport so she could return home to Nova Scotia. However, because she had no money she could not buy an airplane ticket. Eventually, defeated, she called K.P. He picked her up and she returned to their townhouse.
[21] She typically worked approximately 20 days a month, earning “on a good day” roughly $1,000. Other than the modest amount she spent on food for herself, she gave K.P. all her earnings. Despite that, he frequently accused her of stealing from him. She agreed that their townhome had very little furniture, and that K.P. did not have his own car, but instead borrowed or rented a car when he needed one.
[22] On several occasions K.P. was physically violent towards her. One significant incident occurred in January 2017. K.P. became enraged when he learned that she had done a “bare call”, i.e., sexual intercourse with a client without a condom. He hit her and choked her, and then pinched her vagina and tried to insert his fingers inside. The assault ended when she ran out of the house and went to sit in a nearby park.
[23] Shortly after, there was another violent stretch in their relationship, which began near the end of January 2017 and ended on February 3, 2017, when she ran into the street and was rescued by Mr. Zaidi, the passing motorist. Toward the end of January 2017, K.P. became convinced that she was hiding or diverting her earnings instead of turning them over to him. His suspicions culminated one night when he confronted her in the townhouse and interrogated her for hours about money she got “from working” which he was convinced she “stole or kept hidden from him.” He used several tactics to attempt to extract a confession from her, including yelling at her, choking her, punching her face, biting her nose, striking her face and body with metal zip ties, and moving her back and forth from a hot bath into a cold shower. At one point, he punched her mouth so hard that one of her front teeth flew out. At another point, he choked her so hard that she almost lost consciousness, which appeared to concern K.P. enough that he paused the assault. He again pinched her vaginal area. She could not recall whether it was over or under her clothes.
[24] The abuse continued intermittingly over several days. K.W. agreed there were points during the final two weeks where she was alone in the townhouse, and therefore could have left, but did not. She explained that for a while she did not try to leave because she was scared: “I stayed in my place.”
[25] However, a few days later the interrogation and beatings resumed. K.P. repeatedly demanded that she give him the address of the person to whom she was supposedly diverting her earnings. On his instruction, S.D. tied masking tape and phone cords around her wrists and ankles so that she could not move freely. However, the ties were not well secured and eventually fell off.
[26] Although K.D. was not in fact withholding money, she ultimately gave K.P. an address of someone she knew so that he would stop beating her. The beating then ended, and she was permitted to eat and sleep.
[27] When she awoke the next morning she quietly crept downstairs, unlocked the front door, and ran onto Bristol Road, waiving her arms around “like a crazy person for help”. She had no shoes or coat on. A man pulled over, drove her to a nearby mall and called the police. The police took her to the hospital and then that night, February 3, took a statement from her and obtained photographs of her injuries.
[28] Throughout the time that she and K.P. were in Ontario, he never held a job. All his income was derived from her and S.D.’s sexual services to others. He expected her to turn over to him all her earnings, and she did. If she wanted a day off, she needed his permission. She agreed to those terms because, as she put it, “I didn’t really care about money… I cared about him.” When asked why she stayed with K.P. and followed his directions as long as she did, K.W. explained “I didn’t have anywhere else to go, that was just my life.”
[29] Furthermore, despite his behavior, she has never stopped caring for him. After he was arrested and placed in custody, she signed an affidavit to help him get out of jail. The affidavit, dated January 2018, in essence states:
• In early 2017 she was involved in a “domestic violence situation” with a “third party” (unnamed), from which she sustained physical injuries.
• She then asked K.P. if she could reside with him, but he refused, which angered her.
• To retaliate against K.P. for his failure to shelter her, she invented a story about him assaulting her and controlling her movements.
• She hoped that by inventing this story the police would help her return to Nova Scotia.
• Her February 3 statement to police was and remains false.
• K.P. never controlled her conduct or behaviour, and did not pressure or counsel her to “provide this information.”
[30] At trial, K.W. testified that this affidavit is essentially untrue. She explained that when K.P. was arrested, she still cared about him a lot, and “didn’t want him in jail”. Moreover, she still cares for him “a lot”, and still does not want him in jail. Together they have a daughter, who was conceived in spring 2018 (months after these charges were laid), and born on January 12, 2019. Their child lives with her.
[31] When asked by Crown counsel why she then testified at this trial, K.W. stated:
“Because I just don’t want to be a liar. I just want to get through with this because, yeah, it’s been tearing our lives apart for a long time, and I’m just ready for it to be over…”
[32] Although there was no objection by defence counsel to that exchange, it is arguably a form of oath-helping and therefore I have ignored it: R. v. R.M., 2022 ONCA 850, at paras. 31-45; R. v. J.H., 2020 ONCA 165, at paras. 93-95, 103; R. v. Llorenz (2000), 2000 CanLII 5745 (ON CA), 145 C.C.C. (3d) 535 (Ont. C.A.), at paras. 27-28.
Evidence of Faraz Zaidi
[33] On the morning of February 3, 2017, Mr. Zaidi was driving to work along Bristol Road when he saw a young woman standing in the middle of the intersection of Bristol Road and Terry Fox Road, trying to flag down one of the passing cars. Even though it was a cold and cloudy day, she had no shoes or jacket on. She looked “beaten”, and had visible bruises and cuts on her face and hands. He stopped and initially spoke to her through the window. She was shivering and pleading for help, stating “someone is after me, I’m very scared, he’s coming for me.”[1] He asked if she was on drugs, and she replied “no”. She was coherent and not slurring her words.
[34] Mr. Zaidi then let her into the car and, while heading to a nearby plaza, called 911. In her subsequent conversation with the 911 operator, K.W. cried frequently and was clearly very distressed.
Evidence of K.P.
[35] K.P. is now 31 years old and grew up in Dartmouth, Nova Scotia. He has a Grade 11 education. At some point he was diagnosed with ADHD. He is unmarried and has 3 children, and is a trained boxer.
[36] K.P. met K.W. shortly before her 18th birthday. They became friends and had a sexual relationship, but he did not consider it to be a “romantic” connection. He never encouraged her to work in the sex trade, or even suggested it. He was never involved in her work in the sex trade, and she never gave him any of her earnings. He never told her what services to provide, or how much to charge. He never attempted to control her in any way.
[37] At some point in 2016, he, along with K.W. and S.D., decided to come to Ontario. They had no particular plan upon arrival – they were just “gonna do their thing.” They initially stayed at his cousin’s condo. Then he rented a townhouse at 1050 Bristol Road (Unit #53), near the intersection with Terry Fox Road. He used S.D.’s bank account to pay the rent, even though, according to him, neither S.D. nor K.W. was living in the townhouse.
[38] He denied that K.W. and S.D. ever lived with him in the townhouse. From time to time, they would “stay over” there. He agreed that K.W. and S.D. kept their clothes and identification documents at his place, and that people normally keep their identity documents where they live. But he has “no idea” why their documents were found in his townhouse. He also has no idea where else they may have stayed, other than the hotels where they were working.
[39] He recalled that a friend named Terisha visited at one point and “She stayed with us for a little while.” He then corrected himself and said that “She stayed at my place and with [S.D.] where she was, I guess.” He disagreed with the suggestion that when he said she stayed with “us” he meant himself, K.W. and S.D., i.e., that K.W. and S.D. were in fact living with him.
[40] While in Ontario he always worked “under the table”, primarily doing manual labour and selling drugs. He cannot recall any of the locations where he worked as a labourer, or the names of any of the people that he worked for. Nor can he recall how much money he earned at those jobs. He also cannot remember the full names of any of his acquaintances who linked him to the various construction jobs or drove him to the sites – only first names such as “Matt”, “Michael”, “Jonathan” etc.
[41] He could not afford furniture or a car. He would Uber, cab, or borrow cars to get around. He smoked marijuana on a daily basis.
[42] As time went on his relationship with K.W. deteriorated. He wanted her to move her stuff out but she refused.
[43] At some point in January 2017, he visited a friend in Windsor, Ontario. He also visited Nova Scotia toward the end of January. He was not at the townhouse on February 3 when K.W. went to the police. He had nothing to do with any of the injuries to her face or body.
[44] He has never assaulted K.W. In particular, he denied punching her in the stomach on the pathway when they were in Halifax, and also denied assaulting or choking her in the days before she went to the police.
[45] He denied breaking her right front tooth. He testified that when he met K.W., her right front tooth was already broken. When shown the facial photograph that K.W. used on her advertisements for sexual services – where her front teeth are intact – he then said he never “saw” her broken tooth, rather she had told him her tooth had previously been broken.
[46] In February 2017, while he was in Nova Scotia, he learned of these charges and that there was an outstanding warrant for his arrest. He went into hiding and was not arrested until January 2018. In the interim, he reconnected with K.W. She told him she did not want to proceed with the charges and they discussed how to “fix” them.
Analysis and Findings
[47] I will begin my analysis with some overall credibility and reliability findings. This analysis is particularly critical in this case because it is clear from the parties’ submissions that they do not dispute the applicable law or the essential elements of the charges, but rather what the facts are in this case.
[48] In accordance with the approach set out by the Supreme Court of Canada in R. v. W.(D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (“W.D.”), if I believe K.P.’s evidence, I must acquit. If I do not believe his evidence, but I am left in a reasonable doubt by it, I must acquit. 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.
[49] Given the directive in W.D., I will begin this analysis with K.P.’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. I must assess each count separately in determining whether the Crown has met its burden, as guilt on one count does not mean the Crown has proven K.P. guilty on any other count.
A. Overall Credibility and Reliability Findings
[50] K.P.’s evidence was, on the whole, incredible and unreliable. I therefore reject his evidence in its entirety except where it is corroborated by other evidence. Here are a few of the many areas where he gave palpably inconsistent or nonsensical evidence:
a) K.P.’s assertion that K.W. was not living with him defies belief. This was a transparent attempt to distance himself from K.W., and ignores the fact that her clothes and identification documents were in the townhouse, and that she was rescued, in flight, one block away from that location on the morning of February 3, 2017.
b) Even more ridiculous is his claim that he never profited from the sex trade and instead made a living doing labour jobs and selling marijuana. Despite allegedly working as a casual labourer for several months, he could not recall the name of any of the places he worked, any of the people he worked for, or any of the people who found him the jobs. However “casual” that industry might be, it defies belief that he cannot recall even one of those details.
c) K.P. could not even estimate how much money he supposedly earned at those jobs. Again, given that he persisted with those jobs over several months, it is incredible that he cannot at least approximate what he was earning.
d) When caught in an inconsistency K.P. resorts to lying. One example is denying at trial that he was “in a relationship” with K.W. After he was shown his police statement, in which he said “I was with her though. Like I was in a relationship with her”, he then claimed that his request to speak with a lawyer before the interview was denied. When referred to an earlier portion of the statement, where it’s clear the officer linked him by phone to a lawyer, he claimed unconvincingly to have forgotten that.
e) Another example was his assertion that K.W.’s tooth had always been broken, which was proven false when he was confronted with an earlier photo showing the tooth intact.
[51] I turn next to K.W. I find that her evidence is both credible and reliable, and, despite some problems with her memory of certain events, she is telling the truth about these crimes.
[52] Dealing first with her credibility, I find it significant that K.W. shows absolutely no animus or hostility towards K.P.. On the contrary, despite the abuse he inflicted, she still cares a great deal for him. They had a child together after these charges were laid. It was clear she did not want to testify against him. More importantly, she does not want K.P. to be sentenced to jail, a consequence she must know will likely follow should he be convicted of any of the more serious allegations in the indictment. Yet despite that obvious conflict, she got on the stand and candidly answered, to the best of her ability, all the questions put to her.
[53] As for K.W.’s “recant” affidavit, I place no weight on that whatsoever, for several reasons. First, she testified compellingly that it was a false and desperate attempt to help the man she loved. Second, K.P. clearly influenced her to provide the affidavit; in cross-examination he admitted that before he went into custody they discussed these charges and how to “fix” them. Third, the assertions in the affidavit vary from problematic to preposterous. In particular:
• It does not indicate on what day in January 2018 it was executed;
• It does not disclose the identity of the “third party” with whom K.W. was supposedly in a relationship;
• Paragraphs 2 & 3 contradict the compelling evidence that K.W. was in fact living with K.P. in early 2017, not with some “third party”;
• It suggests, incredibly, that because K.P. refused to let K.W. move in with him, she retaliated by inventing a story about how he had pimped her and beaten her over several months;
• It fails to explain why she never told the police about the “third party” who supposedly assaulted her.
[54] I accept her evidence that her affidavit was fabricated in order to rescue K.P. Even without her recantation, the affidavit is palpably ridiculous on its face. It defies belief that because some unnamed third party assaulted her, she not only expected K.P. – a supposedly innocent friend - to shelter her, but then, angered by his supposed rejection, would then go so far as to invent these allegations against him. The affidavit is nothing more than a desperate concoction aimed at exonerating K.P., and smacks of outside influence.
[55] Further, I accept unreservedly her explanation as to why she agreed to sign that affidavit. It is telling that the only time K.W. has clearly lied has been to protect K.P. The fact that she went along with it speaks to the high level of coercive influence that K.P. had over her. She was loyal to him as long as she could, and, however perverse it may seem, remains in love with him. This is a complex relationship, to say the least. Far from demonstrating her untruthfulness, the affidavit is further evidence of the control and manipulation that K.P. exercised throughout their relationship.
[56] That dynamic is clearly evident in the culminating incident when she ran into the street (within a mere block of the townhouse) and was rescued by Mr. Zaidi. His evidence – which was essentially unchallenged in cross-examination – was that on a cold February day, without a jacket or shoes, and with visible injuries on her face, she was desperately trying to flag down any passing car looking extremely distraught. Furthermore, in her conversation with both him and the 911 operator, she sounds frantic and petrified. Based on her demeanor alone that morning, she was clearly a woman in a state of terror.
[57] In sum, the affidavit is, on its face, a ridiculous fiction. Far from exonerating K.P., the affidavit confirms the insidious and controlling influence he has upon K.W. to this day.
[58] I turn to K.W.’s reliability. During her testimony, K.W. repeatedly struggled to recall the details, timing, and frequency of certain events, and on several occasions needed to refresh her memory with significant portions of her police statement. When attempting to recall specifics of certain events, she explained that they occurred during a “very stressful time”, which I find entirely believable given the traumatic nature of the events she was recounting and the obvious anxiety around testifying.
[59] This echoes the observation made recently by Presser J. in R. v. Eze, 2022 ONSC 277, where the defence challenged the complainant’s reliability because she could not recall numerous details of a sexual assault. At paras. 55-56:
I am satisfied that J.K.’s evidence is reliable, notwithstanding her memory gaps. Her explanation for why her memory was imperfect makes sense to me. I accept that the combination of trauma and passage of time would result in lapses of memory. However, I find that her memory issues did not negatively impact on J.K.’s reliability. She carefully explained what she did and did not remember. She did not pretend or claim to remember things she could not actually recall. Even after refreshing her memory by reviewing the transcript of her police statement and surveillance videos, she did not claim to recall everything…
At the same time, J.K. insisted that she remembered certain core events clearly…
[Emphasis added.]
[60] Similarly, I also find that whatever K.W.’s memory gaps, she clearly remembers the core events of her history with K.P., and the critical facts that the Crown’s case rests upon, namely a) K.P. controlled and directed her in the sex trade; b) he collected virtually all of her earnings from the sex trade; and c) on several occasions he used physical force to keep her in line.
[61] Where K.W. mostly struggled was in recalling certain details around the various physical assaults that she described. For example, she was unsure how many times she was punched in the stomach when she was assaulted in Nova Scotia; the exact sequence of the various assaults and choking incidents in the days preceding her escape from the townhouse; the colour of the cords used to tie her legs shortly before she escaped the townhouse; and various other details of physical confrontations between her and K.P.
[62] It is not surprising that K.W. was inexact or could not recall many of the details around the physical assaults, given their frequency, the traumatic nature of those events, and the time that has passed (approximately six years) since they occurred. Importantly, after reviewing the transcript of her police statement, she was able to recall the key events underlying the charges.
[63] Beyond that, when considering these cases, a court must keep in mind the vast power imbalance between a sex worker and her pimp, and the traumatic effect that testifying has on a complainant. It has long been acknowledged by our Supreme Court that sex workers are reluctant to testify against their pimps. In R. v. Downey, 1992 CanLII 109 (SCC), [1992] 2 S.C.R. 10 (“Downey”), the Court considered the constitutionality of an evidentiary presumption in a prior version of the legislation. Justice Cory observed that many women who worked in the sex trade were afraid to testify against their pimp because of the possibility of violence or being ostracized. He also noted that “despite the abusive and corrosive relationship that exists between the pimp and prostitute, many prostitutes are strongly attached to their pimps and truly believe that they are in love with them:” see Downey, at para. 45. He found that “whether pimps maintain control by the emotional dependence of prostitutes upon them or by physical violence, prostitutes have exhibited a marked reluctance to testify against their pimps:” see Downey, at para. 46.
[64] Likewise, in his dissenting opinion in Downey at para. 2, LaForest J. noted:
In other words, because of the parasitic and coercive nature of the pimp-prostitute relationship, prostitutes, often young girls, are extremely reluctant to come forward and testify against their pimps; see the Report of the Committee on Sexual Offences Against Children and Youths (the Badgley Committee), Sexual Offences Against Children (1984), vol. 2, at pp. 1057-58.
[65] Despite legislative changes and various admonitions from the Supreme Court, rape myths, stereotypes and discriminatory thinking continue to influence Ontario courtrooms. As Moldaver J. stated in R. v. Barton, 2019 SCC 33, at para. 1, “myths, stereotypes, and sexual violence against women – particularly Indigenous women and sex workers – are tragically common” [emphasis added]. Later in the decision, at para. 200, Moldaver J. observed that all participants in the criminal justice system should take reasonable steps to address head-on systemic biases against “in particular Indigenous women and sex workers” [emphasis added].
[66] A similar caution was expressed by Nakatsuru J. in the more recent case of R. v. Musara, 2022 ONSC 2835, which also involved a complainant who worked in the sex trade: “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:” see para. 12.
[67] This does not mean we abandon the presumption of innocence and the high burden of proof the Crown bears, along with the consequent need to scrutinize the complainant’s evidence carefully. But it does require triers of fact to acknowledge the power dynamics inherent within the sex trade.
[68] This case carries the hallmarks of several of the dynamics described in the case law: a very young sex worker; a significantly older pimp; and the sex worker’s belief that she is in love with her pimp. This also helps to explain why, on prior occasions when the police checked on K.W., she told them that she was working at her own free will, and did not need help. She was not yet ready or able to implicate K.P. As she testified, “In my mind at that time I still saw myself in a romantic relationship with him.” That is the very dynamic that successful pimps feed upon.
[69] This also explains why it took K.W. so long to leave, even to the last stretch where she remained in the townhouse for nearly two weeks of intermittent physical abuse. As she explained repeatedly in her evidence, she still loved K.P. And she had no other place to go because he had all her money.
[70] I therefore reject the defence position that K.W.’s memory deficits undermine her overall reliability. It would not just be ironic, but deeply unfair, if K.P. – who is the source of K.W.’s trauma and related memory loss – should now profit from it in his defence.
[71] I add a caveat with respect to the charges related to S.D. (counts 1-3 on the indictment). Although I found K.W. credible and reliable regarding what she experienced and observed during her interactions with K.P., there are too many gaps in the evidence for me to arrive at the same conclusion with respect to S.D. The evidence elicited from K.W. by the Crown respecting S.D. was cursory, and lacked detail. The human trafficking charges, in particular, require some analysis of the relationship between the parties and how the accused’s conduct affected the complainant’s state of mind: R. v. Ochrym, 2021 ONCA 48, paras. 33-35. In this case, because a) we do not have the benefit of S.D.’s evidence, and b) according to K.W., S.D. may have straddled the roles of being victimized by K.P. but also, at times, directing K.W., I cannot confidently conclude to what extent K.P. influenced S.D.’s movements. As for the assault charge against S.D., K.W.’s evidence lacked sufficient specificity regarding time and place to ground a conviction.
[72] In the result, counts 1, 2, and 3 – which relate exclusively to S.D. – are dismissed. In addition, based on the absence of evidence at trial, the Crown has invited the dismissal of count 8 (withholding of travel documents). That leaves me to address counts 4-7 (sex trade offences against K.W.) and counts 9-14 (crimes of violence against K.W.).
B. The Sex Trade Charges (Counts 4-7)
[73] The accused faces four such charges, two of which relate to procuring and receipt of a financial benefit therefrom (counts 4 and 5), and the other two which relate to human trafficking and receipt of a financial benefit therefrom (counts 6 and 7). I shall deal with each count in turn.
Count 4 – Procuring (K.W.): s. 286.3(1)
(i) Legal Framework
[74] The provision states:
Procuring
286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
[Emphasis added].
[75] Although by its wording the actus reus can be made out in different ways, in this case, the Crown asserts that K.P. exercised “control, direction or influence” over K.W. The Court of Appeal for Ontario has defined “exercising control” as giving an order that the person has little choice but to obey. “Exercising direction” is like imposing a rule that the person should follow, and “exercising influence” is like proposing an idea and persuading the person to adopt it: see R. v. Gallone, 2019 ONCA 663 (“Gallone”), at para. 47.
[76] When assessing the term “control”, courts should consider that it can include psychological coercion. As Hoy A.C.J.O stated in Gallone at para. 50, while the terms, “control”, “direct” and “influence” involve different degrees of coercion, those terms all “evoke a scenario in which a person, by virtue of his relationship with the complainant, has some power – whether physical, psychological, moral or otherwise – over the complainant and her movements.” Further, it is not necessary that control be complete, constant and absolute: see Chahinian c. R., 2022 QCCA 499, at para. 74.
[77] As for the mens rea, the Crown must demonstrate that K.P.’s actions were “for the purpose of facilitating an offence under s. 286.1(1) of the Code”, being the purchase of sexual services. In other words, the Crown must show that the accused specifically intended his actions would facilitate the purchase of sexual services: see R. v. Joseph, 2020 ONCA 733, at para. 88.
(ii) Application to this case
[78] Dealing first with the actus reus, I am easily satisfied that K.P. at least directed, if not outright controlled, K.W.’s movements. As she persuasively testified, he ran the roost, including directing her to set up trade in Ontario where she could earn more money; instructing her when to lower and raise her prices for services; telling her when to work and when to rest; and stipulating how much money he expected her to earn. He also took all of her earnings (other than small amounts she kept to buy food), and was violent toward her when she did a “bare call” with a client, or when he thought she was withholding money from him.
[79] As for the mens rea, I am entirely satisfied that K.P.’s purpose was to promote K.W.’s sale of sexual services, i.e., to generate income. For the reasons set out above, I completely reject his evidence that he earned any meaningful income through lawful means such as casual labour jobs. He needed K.W.’s income from the sex trade because he personally had no legitimate source of income.
[80] In her written submissions, defence counsel asserts:
Most alleged “pimping” cases are supported by evidence such as cell phone records showing communications with the accused about escorting, hotel records linked to the accused, or ads with the accused’s phone number on them. In this case, there is none of that.
[81] Putting aside whether that assertion is generally correct, the absence of such evidence in this case means little. Conceivably, a smart pimp will avoid these kinds of links in order to immunize himself from prosecution. Indeed, K.W. explained that she and S.D. always booked hotel rooms in their own names in order to shield K.P. And K.P. is a shrewd man. While I ultimately reject virtually all of his evidence, he was a cunning witness who did his best to weave around the significant incriminating evidence. It does not surprise me in the least that he carefully avoided any documentary proof that could link him to these activities.
Count 5 – Financial Benefit from Sexual Services (K.W.): s. 286.2(1)
(i) Legal Framework
[82] The provision states:
Material Benefit from Sexual Services
286.2 (1) Every person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
[Emphasis added.]
[83] The offence is premised on a violation of s. 286.1(1), which prohibits the purchase of sexual services. This provision goes beyond that, with the additional element of criminalizing those who profit from the sale of sex without any legal or moral claim to such benefits. It is aimed at pimps and the parasitic, exploitive conduct in which they engage by living off the earnings of a sex worker.
[84] The actus reus is the receipt of a financial benefit. The mens rea is knowing that it derives from the sale of sexual services.
(ii) Application to this case
[85] As noted above, I accept K.W.’s evidence that virtually all her earnings were turned over to K.P., proving that he received a financial benefit. It is undisputed that he knew her earnings were generated from the sex trade. In sum, he exploited her by living off the avails of her sex work. Consequently, both the actus reus and the mens rea have been established.
[86] There are various exceptions set out in s. 286.2 (4), including a “legitimate living arrangement” with the person providing sexual services or where the money is received “in consideration” for some other benefit provided to that person, e.g., rent. However, K.W.’s evidence, which I have accepted, is that other than small amounts that she withheld to purchase her own food, K.P. took all of her earnings, well beyond any rental payment she might owe. In any case, even if there was a “rental” argument here, under s. 286.2(5)(a) and (d) none of the exceptions apply when the accused is guilty of using violence against the complainant (which I find below) or guilty of procuring under s. 286.3., which I have already found here.
Count 6 – Human Trafficking (K.W.): s. 279.01
(i) Legal Framework
[87] The provision states:
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
Exploitation
279.04(1) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.
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.
[Emphasis added.]
[88] While again the actus reus can be made out in different ways, the Crown’s focus, and much of the evidence in this case, centers on K.P.’s “control, direction or influence” over K.W. Those terms are defined earlier in this decision at paras. 75-76.
[89] As for the mens rea, the Crown must demonstrate that K.P.’s actions were for the purpose of exploiting or facilitating the exploitation of K.W., i.e., that his conduct could reasonably have been expected to cause K.W. to believe that her own safety would be threatened if she failed to continue to offer sexual services. Importantly, it is not necessary that the accused’s conduct actually result in exploitation, i.e. the person’s safety need not actually be threatened: see Gallone, at para. 54; R. v. A.A., 2015 ONCA 558 (“A.A.”), at para. 70.
[90] Further, as the Court of Appeal for Ontario has repeatedly observed, 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: see A.A., at para. 87; Gallone, at para. 54; R. v. Sinclair, 2020 ONCA 61 (“Sinclair”), at para. 12.
[91] The term “safety” as it appears in s. 279.04 relates to protection from both physical and psychological harm: see A.A., at para. 71. In considering whether conduct would reasonably be expected to cause a complainant to fear for her safety, relevant factors are set out in Sinclair at para. 15:
• 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.
(ii) Application to this case
[92] I have already determined that K.P. exercised “control, direction or influence” over K.W. – see para. 78 above. This satisfies the actus reus.
[93] As for the mens rea, I am satisfied beyond a reasonable doubt that K.P.’s purpose was to exploit K.W. His goal was to compel her to provide sexual services using, to whatever extent necessary, violence and manipulation. This included telling her when and where to work, seizing most of her earnings, beating her when she displeased him or broke the rules, and taking advantage of her romantic interest in him.
Count 7 – Financial Benefit from Human Trafficking (K.W.): s. 279.02
(i) Legal Framework
[94] The provision states:
Material Benefit - Trafficking
279.02 (1) Every person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1), is guilty of an indictable offence.
[Emphasis added.]
[95] The actus reus is the receipt of a financial benefit. The mens rea is knowing that it derives from human trafficking, which is the offence set out in s. 279.01.
(ii) Application to this case
[96] As I have already stated, the evidence overwhelmingly demonstrates that K.P. received a financial benefit from K.W.’s work in the sex trade. There is no credible evidence to show that he earned any money on his own. And I accept, unreservedly, K.W.’s evidence that she turned over virtually all her earnings to K.P.
[97] Defence counsel argues that the “independent” evidence supports K.P.’s position, because, contrary to K.W.’s assertion that she and S.D. gave K.P. all their money, K.P. appeared to be “nearly broke” most of the time. There is no “independent” evidence to that effect. It is true that the townhouse contained little furniture and that K.P. never owned his own car. But when it mattered to him, he spent money, e.g., purchasing business class tickets to travel to Nova Scotia and replacing the T.V. immediately after it broke. And it was he who came up with the monthly rent payment of $1,800.00 for the townhouse.
[98] In any case, there is no onus on the Crown to prove what K.P. did with the money, only that he received it. Whether he spent it, stashed it, or smoked it is irrelevant, as I am thoroughly satisfied that he received it on the back of K.W.
C. Crimes of Violence (Counts 9-14)
[99] There are five such charges remaining, all relating to K.W. I shall address each in turn.
Count 9 – Assault (K.W.): s. 266
[100] In her testimony, K.W. alluded to several assaults by K.P. during their relationship. Two of them allegedly occurred when she and K.P. were in Nova Scotia.[2] She also testified there were various assaults in Ontario, but had difficulty recalling the details of some of them and/or had not recounted them to the police during her statement. The most significant assaults, however, occurred during her final two weeks with K.P. before she fled the townhouse on February 3, 2017. Therefore, that is my focus on this count.
[101] K.W. testified, compellingly, that she was assaulted by K.P. on several occasions during those two weeks. This included him punching her in the face, and striking her face and body with metal zip ties. The police photos taken the day she escaped, February 3, 2017, corroborate her version; both eyes are badly blackened, and she has multiple fresh, visible cuts and scratches on her face and body. Although she acknowledged that while under stress she sometimes picked at her skin, causing some of the older scabs seen in the photos, her blackened eyes and the many fresh-looking cuts and scratches corroborate her story. While forensic tests did not identify any blood on the zip ties recovered from the scene, they did confirm that the ties contained the DNA of both K.P. and K.W. K.P.’s explanation – that the DNA was from when he and K.W. used zip ties to hang the new television on the wall – seems contrived and is contradicted by K.W.’s more plausible explanation, namely that they used a wall mount to hang the television, not zip ties.
[102] I therefore find K.P. guilty on this count.
Count 10 – Forcible Confinement (K.W.): s. 279(2)
[103] This charge arises from the same two-week period, and is based on several allegations by K.W.: a) she remained in the townhouse throughout that period because K.P. ordered her to stay, b) she was afraid to leave even when he was not there, and c) at least at one point during that period K.P. had her restrained with tape and a phone cord. She testified that she did not finally break free of her confinement until the morning of February 3, 2017, when she snuck out of the house, ran into the street, and hailed down a passing car.
[104] I found K.W.’s evidence compelling and convincing. Her evidence is corroborated by Mr. Zaidi, who, on the morning of February 3, 2017, found her on the street nearby without shoes or a coat, waving her arms for help. It is consistent with her demeanour on the phone call with the 911 operator, wherein she appears desperate and terrified.
[105] I further find that while she may have been physically capable of leaving at various points during those two weeks, she was psychologically imprisoned by K.P.’s coercive directions. The case law is clear that physical restraint is not required. Confinement can be effected “by fear, intimidation and psychological and other means”, and occurs if, for any significant period, a person is directed contrary to their wishes, so that they cannot move about according to their own inclination and desire: see R. v. Magoon, 2018 SCC 14, at para. 64.
[106] I therefore find K.P. guilty on this count.
Count 11 – Choking (K.W.): s. 246(a)
[107] K.W. testified that K.P. choked her several times during the two weeks leading up to her escape on February 3, 2017. On a few of those occasions, she was “in and out of consciousness”, once to the point where K.P. became alarmed and shouted at her to wake her up. These sessions occurred in conjunction with accusations that she was giving her earnings to another man.
[108] Again, I accept K.W.’s evidence in this regard. These were traumatic incidents that she recalled vividly. While the photographs do not specifically show bruising on her neck, depending on how K.P.’s hands were placed, there may not have been any visible bruising, or any such bruising might have healed by the time she escaped.
[109] I therefore find K.P. guilty on this count.
Count 12 – Assault causing Bodily Harm (K.W.): s. 267(b)
[110] K.W. testified that at one point during the final two weeks in the townhouse, K.P. punched her so hard in the mouth that he broke one of her front teeth, causing a piece to fly out. This is corroborated in the photos taken on the night of February 3, 2017 (Exhibit. 6), which reveal a broken front tooth, and is in stark contrast to the photos in the previous ads that K.W. posted for her sexual services, in which all her front teeth are intact.
[111] Although K.W. did not mention this injury during her police statement, she testified that she likely did tell the police about it at some point, such as when they took her to the hospital or to Chantel’s Place before or after the statement. Given the traumatic circumstances of that day, and the stress K.W. was obviously experiencing, I accept her explanation entirely.
[112] I therefore find K.P. guilty on this count.
Count 13 – Uttering Threats (K.W.): s. 264.1(1)(a)
[113] K.W. testified that during the two-week period preceding her escape on February 3, 2017, K.P. verbally threatened her, in addition to the physical assaults he imposed. In particular, he told her she was “going to end up in the back of a trunk somewhere and then nobody in my family would ever know what happened to me. Nobody would ever hear about me.”
[114] It is undisputed that that statement, if made, constitutes a threat. Further, I accept K.W.’s evidence that K.P. did in fact make that threat. Her testimony was not only unchallenged during cross-examination, but was consistent with the entirety of her narrative.
[115] I therefore find K.P. guilty on this count.
Count 14 – Sexual Assault (K.W.): s. 271
[116] In her testimony, K.W. recalled two separate occasions when K.P. allegedly pinched her vaginal area: (1) the “bare call” assault and (2) one of the assaults during their final two weeks in the townhouse. Defence counsel asserts that even if I accept these actions occurred – which I do – it cannot be inferred that it was for a sexual purpose, which is one of the elements of this offence.
[117] I disagree. The case law is clear that the issue is whether the act violated the sexual integrity of the complainant. This element is determined objectively: R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at para. 1. In the more recent decision of the Court of Appeal for Ontario, R. v. Trachy, 2019 ONCA 622, at paras. 72-74, the court held that:
➢ indecent assault and sexual assault are general intent offences, designed to protect the sexual integrity of all persons
➢ the test is whether the conduct is of a sexual nature, to be determined objectively in all the circumstances, including the part of the body touched, the nature of the contact, the situation in which it occurred, and all the circumstances surrounding the conduct, including any words, gestures, or threats
➢ no proof is required of a sexual purpose or sexual gratification on the part of the accused
➢ the court must look at all the circumstances surrounding the conduct to determine on an objective basis whether the conduct was of a sexual nature and violated the sexual integrity of the complainant.
[118] Applying that test, I easily conclude that both incidents alleged here amount to a sexual assault. Viewed objectively, K.P. forcefully pinching K.W.’s vaginal area violated her sexual integrity. He intentionally grabbed her primary genital area without her consent. Further, while his intent is irrelevant, I easily conclude from these facts that K.P. pinched K.W.’s vagina in order to demean her, dominate her, and punish her for her sexual transgressions (providing bare services to clients) and for defying him (hiding money).
[119] I therefore find K.P. guilty on this count.
Conclusion
[120] I arrive at the following verdicts in this case:
Count 1: Procuring (S.D.), s. 286.3(1): Not guilty
Count 2: Financial Benefit from Sexual Services (S.D.), s.286.2(1): Not guilty
Count 3: Assault (S.D.), s. 266: Not guilty
Count 4: Procuring (K.W.), s. 286.3(1): Guilty
Count 5: Financial Benefit from Sexual Services (K.W.), s. 286.2(1): Guilty
Count 6: Human Trafficking (K.W.), s. 279.01: Guilty
Count 7: Financial Benefit from Human Trafficking (K.W.), s. 279.02: Guilty
Count 8: Withholding of Documents (K.W.), s. 279.03: Dismissed
Count 9: Assault (K.W.), s. 266: Guilty
Count 10: Forcible Confinement (K.W.), s. 279(2): Guilty
Count 11: Choking (K.W.), s. 246(a): Guilty
Count 12: Assault Causing Bodily Harm (K.W.), s. 267(b): Guilty
Count 13: Uttering Threat (K.W.), s. 264.1(1)(a): Guilty
Count 14: Sexual Assault (K.W.), s. 271: Guilty
Baltman J.
Released: December 23, 2022
COURT FILE NO.: CR-19-1630
DATE: 20221223
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
- and -
K.P.
REASONS FOR DECISION
BALTMAN J.
Released: December 23, 2022
[1] K.W.’s statement to Mr. Zaidi and the subsequent 911 call were admitted not for their truth but solely for her demeanour.
[2] The two alleged assaults in Nova Scotia are not covered by the indictment as they were in another jurisdiction, and there was no “other disreputable conduct” application. In these circumstances, I have not relied on that evidence.