COURT FILE NO.: CR-21-10000003-0000 DATE: 20230303

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Monica Gharabaway for the Crown

• and -

TAL AMDURSKI Nate Jackson for Tal Amdurski

HEARD: March 21- 25, August 5, 22, 23, November 1, 2, 3, 9, 2022

REASONS FOR JUDGMENT

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

CORRICK J.

Introduction

[1] Tal Amdurski is charged in a multi-count indictment with various sexual services, sexual assault and human trafficking offences involving S.S., a 13-year-old complainant. A further count of advertising an offer to provide sexual services was dismissed at the close of the Crown’s case. The offences are alleged to have occurred between June 1 and 13, 2018.

[2] Mr. Amdurski was originally charged together with Thomas Graff. On January 11, 2023, I stayed the charges against Mr. Graff for a breach of s. 11(b) of the Charter.

[3] Specifically, Mr. Amdurski is charged with the following offences:

Count 1 – Trafficking a person under 18 years of age, contrary to s. 279.011(1) Count 2 –Material benefit, contrary to s. 279.02(1) Count 3 – Material benefit from sexual services of a person under 18 years of age, contrary to s. 286.2(2) Count 4 – Procuring, contrary to s. 286.3(2) Count 6 – Sexual assault, contrary to s. 271 Count 7 – Sexual interference, contrary to s. 151 Count 8 – Obtain for consideration the sexual services of a person under 18 years of age, contrary to s. 286.1(2) Count 13 – Communicate for the purpose of obtaining the sexual services of a person under 18 years of age, contrary to s. 286.1(2)

Overview

[4] In May 2018, S.S. had been engaging in sex work. She was 13 years old and a student in grade 8. In June 2018, she posted a message on an app known as Whisper, and Mr. Amdurski replied to her. They communicated over Whisper and then by text message. Mr. Amdurski was 36 years old. S.S. told him that she was 18.

[5] S.S. and Mr. Amdurski met on three occasions. The first time was at Mr. Amdurski’s hotel room, where they engaged in sexual activity. Mr. Amdurski paid S.S. $500.

[6] The second time was the next day when Mr. Amdurski arranged for S.S. to see two different men in two different locations to exchange sexual services for money. He arranged S.S.’s transportation to and from the locations and told her how long each session would be and how much money the men would pay her. S.S. saw both men that night.

[7] The third time was several days later in a hotel suite where S.S. had sex with Mr. Amdurski’s friend and later with Mr. Amdurski. When S.S. woke up in the morning, she discovered text messages from her mother wondering where she was. Earlier that morning, her mother had discovered some of the text messages between S.S. and Mr. Amdurski and called the police.

[8] S.S. arrived home later that morning. She would not speak to the police when they arrived in response to her mother’s call. She did not feel that a crime had been committed and she did not want to get Mr. Amdurski in trouble. S.S. ultimately came forward and provided a statement to the police about her interactions with Mr. Amdurski in August 2018. Mr. Amdurski was arrested and charged in October 2018.

Review of Evidence

[9] The Crown called evidence from S.S., her mother, Cassie MacDonald, another woman involved in the sex trade, and Officers Pischedda and Correa. Other evidence included an Agreed Statement of Fact, several video clips from a Best Western Hotel, and photographs of numerous text messages between S.S. and Mr. Amdurski.

[10] Mr. Amdurski testified.

[11] It was an agreed fact that S.S. was engaged in the sex trade prior to meeting Mr. Amdurski. On May 31, 2018, S.S. sent an email to a support organization for sex workers asking for advice. Her email read as follows:

“hello, recently, I was informed about this website when I had come into a serious scare in my job, it was dark so he payed me a fake 100 and I did not notice . . . unfortunately, I have to deal with this almost every day and it’s tiring. If you could please reply to me with a couple tips that would be greatly appreciated. thank you.”

Evidence of S.S.

[12] S.S. was 17 years old at the time of the trial. She testified that in June 2018, she posted a message on Whisper to the effect that she needed to make some money quickly and easily. Mr. Amdurski replied, and after chatting some time over Whisper and by text, she agreed to meet him at his hotel. Mr. Amdurski arranged an Uber to pick her up near her apartment and take her to the hotel. She arrived at the hotel after midnight, met Mr. Amdurski outside, and went to his room.

[13] When they got to his room, Mr. Amdurski offered her some alcohol, cocaine, and another drug that he poured into the alcohol. She took everything that he offered her. She had never consumed drugs or alcohol before. After she took the drugs and alcohol, he asked her to have sexual intercourse. She agreed.

[14] She spent the night with Mr. Amdurski. In the morning, he arranged an Uber to take her to school. Before she left, Mr. Amdurski gave her $500.

[15] S.S. testified that during the first night Mr. Amdurski did not tell her that he had worked for an escort agency, and she did not ask him to arrange clients for her to meet.

[16] The next day, she and Mr. Amdurski communicated by text. He asked her if she “wanted to do that again,” which she interpreted as meaning having sex with men for money. This was the first time they had discussed exchanging sex for money. She did not want to say no to him because he had been nice to her the night before.

[17] The text message exchange (Exhibit 7) between them indicated that Mr. Amdurski had arranged one meeting at 1:00 a.m. at a condo for one hour and a second meeting at a hotel in Etobicoke for two hours. Mr. Amdurski told her that the second person would give her $200.

[18] Mr. Amdurski picked S.S. up at approximately 1:30 a.m. in a pick-up truck at a location near her apartment. He sent her a text message when he arrived. There was a woman and another man in the truck with Mr. Amdurski. He drove her to a condo building downtown. In chief, S.S. testified that Mr. Amdurski walked her up to the suite, spoke to the client, gave him some cocaine, and left. She and the client drank a little bit, did some cocaine, and then had sex. The client gave her $280.00.

[19] In cross-examination, she corrected herself after reviewing the statement she gave to the police in which she said that she did not do any drugs at the condo and could not remember whether Mr. Amdurski accompanied her to the suite.

[20] S.S. testified that Mr. Amdurski told her he would take part of what she earned to pay for hotel rooms, drugs, and Ubers. She could not recall when she gave him any money.

[21] When S.S. was finished with the client at the condo, Mr. Amdurski arranged an Uber to pick her up and take her to the hotel in Etobicoke. Before she left the condo, S.S. sent Mr. Amdurski a text message asking if she had to see the second person. She was feeling uncomfortable because the client at the condo had made her have anal sex and she did not like it. Mr. Amdurski told her that the client at the hotel was booked, and he assured her that he was a much easier client than the first one.

[22] S.S. arrived at the hotel at approximately 3:30 a.m. She testified in chief that Mr. Amdurski met her downstairs and walked her up to the client’s room. However, after seeing the video surveillance from the hotel, she agreed that she went to the room herself. At the room, she met Mr. Graff. She drank some alcohol and consumed some cocaine that Mr. Graff offered her. They then moved to the bed and had sexual intercourse. She asked him to stop because it was painful. He did.

[23] She texted Mr. Amdurski and asked him to send her an Uber to go home. He did. Mr. Graff gave her money before she left.

[24] S.S. met Mr. Amdurski for a third time several days later. Mr. Amdurski sent her a text message asking her to meet. He sent an Uber to pick her up and take her to a hotel where she met Mr. Amdurski and his friend. Mr. Amdurski met her outside and accompanied her to a hotel suite where his friend was. She and the two men consumed some cocaine. S.S. then had sex with Mr. Amdurski’s friend, following which she took some more cocaine and had sex with Mr. Amdurski.

[25] S.S. next remembers waking up in the morning and receiving text messages from her mother. Mr. Amdurski and his friend told her to tell her mother that she was with friends, which is what she did.

[26] Mr. Amdurski arranged for an Uber to take her home. When she got there, her mother and the police were there. She did not tell the police about Mr. Amdurski because she did not want to get him in trouble. She sent him a text message telling him that the police were at her house, and something might happen to him. Eventually, her mother persuaded her that speaking to the police was the right thing to do.

Evidence of Mr. Amdurski

[27] Mr. Amdurski’s evidence about the chronology of events that involved S.S. was consistent with S.S.’s evidence. Over the course of eight days, he met S.S. three times and arranged her meeting with three different clients on two different nights. S.S. told him that she had had a bad experience as a sex worker. She had performed services and not been paid. She also told him that she wanted to earn $500 a night. Mr. Amdurski testified that he had prior experience working for an escort agency where he booked blocks of time for women to see clients. S.S. learned this when they met the first time, and she asked him to help her.

[28] The clients paid S.S. directly. Mr. Amdurski earned his money from the booking fee paid by the client.

[29] Mr. Amdurski believed that S.S. was 18 years old. She indicated her age range on Whisper as 18 – 20 years. When he asked her directly how old she was, she said 18. He testified that he had no reason to believe that she was not 18 years old.

[30] I briefly summarize some of the details of Mr. Amdurski’s evidence below. I will refer to other details when I deal with each of the counts in the indictment.

[31] Mr. Amdurski described Whisper as a social media app over which one can post a message to the world and people can reply to it. In early June 2018, he was going through the app looking for people to talk to, when he came across the message that S.S. had posted saying that she needed to make some money by Friday and asking if any man could help. He looked at her Whisper profile and saw that she had indicated that she was between 18 and 20 years old.

[32] He replied to her post, and the two of them chatted for some time. During their Whisper conversation, S.S. sent some nude photographs of herself to him. Mr. Amdurski asked S.S. if she wanted to hang out. After he agreed to help her with money, S.S. suggested the idea of sex. He knew that it was not uncommon for women to use the Whisper app to offer sexual services for money.

[33] Mr. Amdurski arranged for an Uber to pick S.S. up and bring her to the hotel where he was staying. When she arrived, he offered her a glass of wine. She had two or three glasses of wine throughout the evening. They went into the hot tub in the room. While in the hot tub, they discussed their zodiac signs. During that discussion, S.S. confirmed that she was born in 2000. This struck Mr. Amdurski who realized that 18 years had elapsed since people had been concerned about Y2K.

[34] S.S. asked Mr. Amdurski if he wanted to have sex. He asked her to perform oral sex. They engaged in sexual activity and then Mr. Amdurski consumed some cocaine. S.S. asked if she could have some. He prepared a line for her. S.S. rolled up a bill and snorted it. Throughout the night, they did another six lines of cocaine and engaged in further sexual activity. They also consumed some GHB that night. Mr. Amdurski testified that at around 5:30 a.m. he consumed GHB and gave S.S. a small amount. Mr. Amdurski was a daily cocaine user and often took GHB with cocaine.

[35] During the night, they looked at photos on each other’s phone, including the messages they had posted on Whisper and the responses they had received. While doing this, S.S. learned that Mr. Amdurski represented several women who worked as escorts, booking clients for them to see. Mr. Amdurski testified that although he no longer worked for an escort service, he still worked in the industry.

[36] S.S. was interested in what Mr. Amdurski could do for her and asked him if he would arrange clients for her to see. He said he would. He testified that they did not talk about a specific financial arrangement that night. She told him that she wanted to make $500 a night.

[37] In the morning, Mr. Amdurski arranged an Uber for S.S., and she left.

[38] Mr. Amdurski and S.S. communicated again that afternoon or the next day, which would have been June 6, 2018. S.S. texted Mr. Amdurski telling him that she wanted to work but it had to be after 1:00 a.m. Mr. Amdurski arranged two clients for S.S. to see in the early morning hours of June 7.

[39] Mr. Amdurski picked S.S. up sometime after 1:00 a.m. and drove her to a condo in downtown Toronto. He helped her buzz into the building, told her the apartment number and then left. He later arranged an Uber to pick her up at the condo and take her to a hotel where she met Mr. Graff. When she was finished at the hotel, he arranged an Uber to take S.S. home.

[40] The final client meeting Mr. Amdurski arranged for S.S. was on June 13 after S.S. texted him and asked him to let her know if there was a job for her anytime soon. This date was with Mr. Amdurski’s friend and took place in a hotel suite in North York. Mr. Amdurski was present. The suite had two bedrooms. After S.S. spent some time with his friend in one bedroom, S.S. went into Mr. Amdurski’s bedroom. She asked Mr. Amdurski for more cocaine. She performed oral sex on Mr. Amdurski after he asked her to.

The Text Messages

[41] Several photographs of text messages between Mr. Amdurski and S.S. were filed as Exhibit 7. Their origin is relevant.

[42] S.S.’s mother testified that she discovered S.S. missing from her bedroom at 6:55 a.m. on June 13, 2018. S.S. had sent her a message that she was with a friend and had gone to see the doctor. Her mother was suspicious. She found a phone that S.S. was no longer using and discovered the text message conversation between Mr. Amdurski and S.S. on it. She photographed the messages using her own phone. She was not sure if she photographed all the messages. As she went through the messages during cross-examination, she agreed that there were other messages that she had not photographed. She testified that messages were downloading on to the phone while she was photographing other messages.

[43] She also saw the Whisper app on the phone, but she did not look at it. Finally, in the Contacts section of the phone S.S.’s mother found a listing for “Tal, Basically My Pimp,” along with a phone number. S.S. testified that she had created that contact.

[44] On June 15, 2018, S.S. and her mother met with Officer Pischedda at which time S.S.’s mother gave the officer the phone that contained the messages she had photographed and a second phone that S.S. was using. About one month later, she sent Officer Pischedda the photographs she had taken of the text messages.

[45] The police returned both phones to her in August 2018. She restored both phones to factory settings because the police told her that they had downloaded the contents of the phones and no longer needed the information contained in them.

[46] It is not disputed that the police have been unable to locate the downloaded contents of the two phones. The photographs taken by S.S.’s mother are the only physical evidence of the text messages between S.S. and Mr. Amdurski. It is not disputed that the photographs do not include every text message between S.S. and Mr. Amdurski.

Fundamental Legal Principles

[47] My analysis of the evidence in this trial is governed by fundamental principles that apply to all criminal trials.

[48] The first is the presumption of innocence. Mr. Amdurski began this trial presumed to be innocent. This presumption has remained with him throughout the trial. It is only displaced if I am satisfied that Crown counsel has proven the charges beyond a reasonable doubt.

[49] The second is that the Crown bears the burden of proving Mr. Amdurski’s guilt. Mr. Amdurski does not have to prove that he is innocent of any of these crimes.

[50] Proof beyond a reasonable doubt is a very high standard. Likely or probable guilt is not enough. It is not proof of guilt beyond a reasonable doubt. On the other hand, the Crown is not required to establish guilt with absolute certainty. Nevertheless, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242. Ultimately, before I convict Mr. Amdurski of any offence, I must be certain that he committed it. If I am unsure, I must acquit him.

[51] To arrive at a verdict in this case, I am required to make findings about the credibility and reliability of the witnesses. The Crown argues that S.S. was a credible witness, and her evidence alone supports convictions on all counts. Mr. Amdurski testified that he believed that S.S. was 18 years old, and he denied engaging in any human trafficking activities.

[52] My assessment of the evidence cannot devolve into a contest where I choose between the evidence of S.S. and Mr. Amdurski. Such an approach is inconsistent with the Crown’s burden to prove Mr. Amdurski’s guilt beyond a reasonable doubt. The reasonable doubt standard applies to my assessment of the evidence.

[53] In considering the issue of credibility and proof beyond a reasonable doubt, I am required to follow the approach laid down by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742. If I believe Mr. Amdurski’s evidence, I must find him not guilty. If I do not believe Mr. Amdurski’s evidence, but am left in reasonable doubt by it, I must find him not guilty. Even if Mr. Amdurski’s evidence does not leave me with a reasonable doubt, I may only find him guilty if I am convinced that the Crown has proven the charges beyond a reasonable doubt.

[54] When I am considering whether to believe Mr. Amdurski’s evidence or whether it raises a reasonable doubt, I must consider his evidence in the context of the whole of the evidence, and not in isolation.

[55] Finally, I bear in mind that I can accept some, none, or all the evidence of any witness.

Analysis

[56] I will structure my analysis into sections, beginning with some general comments about the reliability and credibility of the witnesses, followed by a discussion of the individual counts in the indictment.

Credibility and Reliability

[57] I begin with the evidence of S.S. Ms. Gharabaway submits that S.S. was a credible and reliable evidence with no motive to fabricate these allegations against Mr. Amdurski. Mr. Jackson did not argue that S.S. fabricated her evidence but did point out several inconsistencies in her evidence and questioned its reliability.

[58] I remind myself that S.S. testified about events that happened to her when she was 13 years old. I am required to take a common-sense approach to her evidence and assess it having regard to her age, mental development, understanding and ability to communicate both at the time of the alleged events and when she gave evidence in court. Although her credibility must be assessed according to the same criteria that apply to adult witnesses, the presence of inconsistencies, especially on peripheral matters such as time and location, must be considered in the context of her age at the time of the alleged events: R. v. W. (R), [1992] 2 S.C.R. 122, at para. 26.

[59] S.S. testified about very difficult events in her life. She did so in a clear and straightforward manner. I do not believe that she fabricated the allegations against Mr. Amdurski. However, some of the inconsistencies between what she told the police, her evidence at the preliminary hearing, her evidence in chief and in cross-examination, together with her lack of memory of significant details cast a shadow on the reliability of her evidence. I note the following examples of inconsistencies in S.S.’s evidence:

1. S.S. testified that on the second night, Mr. Amdurski walked her up to the condominium unit, introduced her to the client, and gave the client some cocaine, which she later ingested. At the preliminary hearing and in her police statement, she said that she did not do any drugs the second night. At the preliminary hearing, she said that she went to the condominium unit by herself. During cross-examination, she testified that she did not remember whether she went to the condominium unit by herself and that she did no drugs at the condominium.
2. At the preliminary hearing and in chief, S.S. testified that Mr. Amdurski walked her up to Mr. Graff’s hotel room. When she was directed to the video evidence of the hotel hallway in cross-examination, she admitted that she went alone. However, she added that Mr. Amdurski came into the room when she was in the washroom. The video evidence does not support this.
3. In chief, S.S. testified that on the third night, she went into Mr. Amdurski’s room at his request. He wanted to have sex with her. She told the police that she went into his room because she was bored, her high was wearing off, and she wanted more cocaine. In cross-examination, she testified that she was not sure what she told the police was the truth, and that she now remembered it differently.
4. At the preliminary hearing, S.S. testified that it was always Mr. Amdurski that reached out to her to inquire whether she wanted to see clients. At trial, she agreed after reviewing the photos of the text messages, that she initiated the conversation with Mr. Amdurski, inquiring about whether there was any work for her on the third night.

[60] S.S. also testified that she could not remember certain significant details. She could not remember what name she used on her Whisper portfolio. She could not remember the message she posted on Whisper that attracted Mr. Amdurski’s attention. She could not remember why she wanted to make money at the time. She could not remember if she sent Mr. Amdurski any photos of herself, although she said it was possible. She did not know whether she told Mr. Amdurski that she had had a negative experience working in the sex trade. She did not remember if Mr. Amdurski told her that he had experience in the escort business. She did not remember if she was wearing any clothes when she had intercourse with Mr. Amdurski the first night.

[61] S.S. was very vague about how it came to be that Mr. Amdurski began arranging men for her to see, and what their financial agreement was. S.S. testified that the first time she and Mr. Amdurski discussed exchanging sexual services for money was when he texted her the second night and asked her if she wanted to meet up with someone. When asked what she would get in exchange for having sex with men, she replied, “Um-m, I think I was supposed to have gotten, like, money.” She wasn’t sure why Mr. Amdurski was asking her to see clients, and assumed it was because she had gone with him the night before.

[62] S.S. testified that she and Mr. Amdurski did not talk about money that much. She could not recall any specific conversations they had about money. Mr. Amdurski would tell her how much she would be getting. He also told her that he would get part of what she was supposed to receive because of the drugs he gave the clients and to pay for the hotel rooms and Ubers. She testified that Mr. Amdurski would just take his part.

[63] S.S. testified that Mr. Amdurski did not offer to find her clients to meet. When asked how she found clients to meet, she testified that Mr. Amdurski did that for her, “just automatically, I guess.”

[64] I recognize that these details would be difficult for anyone, let alone a 17-year-old like S.S., to disclose in a courtroom.

[65] At the end of the day, I believed S.S. for the most part. But I am quite alive to these frailties in her evidence. This leads me to take a cautious approach to the examination of her evidence.

[66] I turn next to Mr. Amdurski’s evidence. Mr. Amdurski was not a straightforward witness. His answers to questions were often circuitous and unresponsive. Although he made no effort to portray himself as someone unattached to the escort and sexual services industry, he refused to acknowledge certain details related to S.S.’s involvement in the sexual services industry. This was an attempt to distance himself from S.S.’s work in the sex trade. He testified that in his part of the “industry” there is no exchange of money for sexual services. Rather the money is exchanged for blocks of time. He booked blocks of time for S.S. with clients. Clients paid S.S. directly and he would receive a booking fee from the client.

[67] For example, after S.S. met the first client at the condominium on the second night, she sent Mr. Amdurski a text message asking him if she had to see the second client. In two text messages she wrote, “I just really have to shit. … Because of the assfuck thing lol it’s uncomfortable.” Mr. Amdurski disagreed with Ms. Gharabaway’s suggestion that S.S. was telling him that she had engaged in anal sex with the client at the condominium and found it uncomfortable. He ultimately relented and said that it was possible, even likely, that Ms. Gharabaway’s suggestion was correct.

[68] A further example of Mr. Amdurski’s attempt to distance himself was his response to Ms. Gharabaway’s suggestion that he compared S.S.’s performance in the sex trade favourably to that of another sex trade worker. When Mr. Amdurski was arranging the meetings for the second night, he told S.S. that another sex worker was meeting with the second client. S.S. replied by text, “Another girl? How can I compete lol.” Mr. Amdurski replied by text, “You’re better than her. Take that from someone who knows.” Mr. Amdurski testified that this was a joke. He was not referring to S.S.’s performance as a sex worker or his own experience in the sex trade.

[69] Similarly, he denied that his texts to S.S. after the second night in which he said, “Great job last night,” and “Ur great! I am really happy with the way u work” referred to her work in the sex trade. Instead, he testified that it referred to the fact that she arrives at locations, communicates well with him, and seems to be easy to get along with. I find that this too was an example of Mr. Amdurski trying to distance himself from S.S.’s provision of sexual services.

[70] I also find that Mr. Amdurski fabricated the following account of his friend Arif texting S.S. on his behalf. After S.S. saw the first client on the second night, she texted Mr. Amdurski and asked, “Do I have to see that person?” referring to the second client Mr. Amdurski had arranged for her. Ms. Gharabaway suggested to Mr. Amdurski that this was an example of S.S. communicating that she did not want to work. This was a suggestion that Mr. Amdurski was reluctant to admit.

[71] Rather than simply disagreeing with the suggestion, Mr. Amdurski explained that he was driving at the time S.S. sent him that text, and his friend Arif had Mr. Amdurski’s cell phone. Mr. Amdurski dictated his reply to S.S. to Arif and asked him to send it. The reply included telling S.S. that she did not have to go anywhere she did not want to go to or do anything she did not want to do. At the same time, Cassie MacDonald, who was in the back seat of his car, ordered an Uber to pick S.S. up at the condo and take her to the hotel. A few minutes later, Mr. Amdurski took his phone from Arif and discovered that Arif had not told S.S. that she did not have to see the second client. He wrote that message and sent it to S.S.

[72] That particular text message is not included in the package of photographed messages entered as an exhibit. Mr. Amdurski testified that it is one of the missing messages. I do not accept that this is one of the missing messages. The flow of messages between S.S.’s question about having to see the second client and Mr. Amdurski’s instructions about the Uber and the location of the second meeting are uninterrupted. In addition, Mr. Amdurski ordered the Uber for S.S. on Cassie MacDonald’s account. Cassie MacDonald testified that on June 7, 2018, she was in a hotel room with Mr. Amdurski celebrating his birthday when Mr. Amdurski asked her to order an Uber. She did so twice that day. When asked in cross-examination if it were possible that Mr. Amdurski asked her to order the Uber while he was driving, she said no, that they were at the hotel.

[73] These weaknesses in Mr. Amdurski’s evidence, particularly the fabrication, cause me to examine his evidence closely.

[74] Mr. Amdurski’s knowledge of S.S.’s age is one of the main issues in this trial. I am going to begin my analysis of the specific counts in the indictment with counts 6 and 7, sexual assault and sexual interference.

Count 6 – Sexual Assault, s. 271

Count 7 – Sexual Interference, s. 151

[75] Given that S.S. was 13 years of age at the time of these offences, her consent to the activity that is the subject matter of these counts is not a defence. The sole matter at issue with respect to these two counts is whether Mr. Amdurski took all reasonable steps to ascertain S.S.’s age as required by s. 150.1(4) of the Criminal Code.

[76] Mr. Amdurski testified that he believed that S.S. was 18 years old. He was mistaken. Mr. Jackson submits, on Mr. Amdurski’s behalf, that Mr. Amdurski took all reasonable steps that a reasonable person would have taken in the circumstances of this case.

[77] Justice Doherty set out the following three-step process for analyzing the mens rea component of offences where the defence of a mistaken belief in the complainant’s age is raised.:

Step 1: The trier of fact determines whether there is an air of reality to the defence that the accused believed the complainant was the required age and took all reasonable steps to determine her age. If not, that defence will not figure in the analysis.

Step 2: If yes, the second step requires the Crown to negate the defence beyond a reasonable doubt, by proving either that the accused did not believe the complainant was the required age or did not take all reasonable steps to determine her age. If the Crown fails to negate the defence, an acquittal will follow.

Step 3: If the Crown negates the defence, the trier of fact must determine whether the Crown has proved that the accused knew that the complainant was underage, was wilfully blind that the complainant was underage, or was reckless as to her underage status. If yes, a conviction will follow. If not, the accused will be acquitted: R. v. Carbone, 2020 ONCA 394, at para. 129.

[78] Ms. Gharabaway concedes that there is an air of reality to the defence of mistaken belief in age but submits that Mr. Amdurski took no reasonable steps to ascertain S.S.’s age.

[79] Mr. Jackson acknowledges that the only step Mr. Amdurski took was to ask S.S. her age but submits that this question alone was reasonable in the circumstances known to Mr. Amdurski. Those circumstances included the following.

1. S.S. checked the box on her Whisper profile indicating that she was between 18 and 20 years old.
2. S.S. told Mr. Amdurski that she was 18 in a text message prior to their meeting on the first night. Mr. Amdurski testified that he asked her because he wanted to know whether she was 18, 19 or 20 years old.
3. Mr. Amdurski testified that S.S. sent him nude photographs of herself during their conversation over Whisper prior to meeting the first night. According to Mr. Amdurski, S.S. had very large breasts and he had not “seen any girls that are under 18 with a chest that big …”.
4. Mr. Amdurski and S.S. engaged in flirtatious conversation over Whisper and text. When Mr. Amdurski asked her if she wanted to hang out, S.S. proposed exchanging sexual services for money after Mr. Amdurski agreed to help her out with money. Mr. Amdurski submits that this was a mature conversation that an 18-year-old would engage in.
5. S.S. took an Uber that Mr. Amdurski had arranged for her and met him at a hotel in the middle of the night to have sex for money. This too was mature behaviour that did not cause Mr. Amdurski to doubt S.S. was 18 years old.
6. While they were in the hot tub, S.S. and Mr. Amdurski had a conversation about their zodiac signs. S.S. said that she was born in 2000, confirming that she was 18 years old. S.S. does not recall such a conversation.
7. S.S. told Mr. Amdurski that she was a student. Although Mr. Amdurski testified that he did not ask her what school she attended or whether she was in university or high school. S.S. testified that while they were in the hot tub, she told Mr. Amdurski that she was in grade 12.
8. S.S.’s age was not questioned by any of the Uber drivers, the hotel staff or any of Mr. Amdurski’s friends who were in his car when he picked S.S. up the second night.
9. Sometime during the first night they met, S.S. told Mr. Amdurski that she had been working in the sex trade and had had a bad experience with a client who did not pay her.
10. S.S. had worked as a sex worker since May 2018. She had approached an advocacy and support organization for sex workers seeking help and “tips.”
11. S.S. appeared to be an experienced cocaine user.
12. S.S. took the initiative, asking Mr. Amdurski to help her arrange meetings with clients. According to Mr. Amdurski, she reached out to him after the first night. She also reached out to him after she met with Mr. Graff. She texted Mr. Amdurski and asked him to let her know if there would be a job for her anytime soon.
13. S.S. told Mr. Amdurski that she wanted to work and that she appreciated the services he provided for her.

[80] Reasonable steps are steps that a reasonable person would take, in the same circumstances known to the accused at the time, to find out the complainant’s age: R. v. Alekozai, 2021 ONCA 633, at para. 45; R. v. W.G., 2021 ONCA 578, at para. 60. The determination of whether an accused has taken all reasonable steps is context specific. The facts of each case will dictate what constitutes reasonable steps. Generally, the more reasonable an accused’s perception of the complainant’s age, the fewer steps will be required of them to ascertain the complainant’s age: R. v. George, 2017 SCC 38, at para. 9. Reasonable steps must be meaningful steps in the sense that they provide information that is reasonably capable of supporting the accused’s belief that the complainant is of legal age.

[81] Mr. Amdurski must have taken all reasonable steps before he had sexual contact with S.S.: George, at para. 19; R. v. W.G., at para. 59. Events that occurred after Mr. Amdurski had sexual contact with S.S. can be considered to determine the reasonableness of Mr. Amdurski’s perception that S.S. was 18 years old before he engaged in sexual activity with her.

[82] Parliament has set the bar very high for an accused person to rely on the defence of mistaken belief in age. Section 150.1(4) of the Criminal Code requires the accused to have taken all reasonable steps to ascertain the complainant’s age.

[83] A common-sense approach must be taken to the analysis of whether the accused took all reasonable steps informed by the purpose of s. 150.1(4), which is to protect young people from sexual crimes by making the adults responsible for preventing adult/youth sexual activity: R. v. W.G., at para. 62.

[84] I am satisfied beyond a reasonable doubt that Mr. Amdurski did not take all reasonable steps to ascertain S.S.’s age before he engaged in sexual activity with her on the first night. My conclusion is based on the following.

[85] The context in which their interaction occurred is important. Mr. Amdurski was 36 years old. S.S. was 13. The greater the disparity in the ages of the participants, the more inquiry is required: R. v. K. (R.A.) (1996), 106 C.C.C. (3d) 93 (N.B.C.A.). The only step Mr. Amdurski took to ascertain S.S.’s age was to ask her.

[86] Mr. Amdurski was experienced in the sex trade industry. S.S. had far less experience.

[87] They met on a social media app that Mr. Amdurski knew was commonly used by people selling sexual services. He also knew that a person did not have to be 18 years old to use the app.

[88] Mr. Amdurski acknowledged that people lied about their age online. He testified that, “you can’t really take a lot of stock into anything you see online.” In addition, he knew that Whisper did not require proof of a user’s age before permitting the user to check off their age range. The very fact that S.S. said that she was 18 years old, the minimum age requirement to sell sexual services, should have put Mr. Amdurski on notice that he needed to enquire further.

[89] The conversation in the hot tub during which S.S. said that she was born in 2000, if it happened, added nothing new to the mix of information Mr. Amdurski already had from S.S. S.S. lied about her age and said she was born in 2000 and was 18. The fact that she repeated her lie at different times throughout her interaction with Mr. Amdurski is not reasonably capable of supporting his belief that she was 18 years old.

[90] S.S.’s physical appearance could not be relied upon as evidence that she was 18 years old, or even 16 years old. S.S.’s physical appearance was very youthful, as can be seen in the video evidence. She was 5'3" tall and weighed 95 pounds. She was neither dressed up or made up to feign the appearance of someone more mature. She testified that she did not wear make up. Her mother testified likewise. S.S. was unable to recall what she wore when she met Mr. Amdurski the first night. In the video, which was taken in the hotel the second night, she is seen wearing a zippered sweatshirt, sweatpants, and sneakers. Her mother testified that S.S. was wearing track pants and a hooded sweatshirt when she arrived home the morning her mother called the police. It is reasonable to conclude that she would have dressed in a similar fashion the first night she met Mr. Amdurski. There is no evidence to the contrary.

[91] The fact that no Uber driver or hotel staff questioned S.S.’s age is not capable of supporting Mr. Amdurski’s belief that S.S. was 18 for a few reasons. Firstly, Uber drivers who drove S.S. in the middle of the night when their suspicions, if they had any, would be at their highest, would have seen S.S. under poor lighting conditions. It would have been dark outside, and she would have been seated in the back of the car as she was (as seen in Exhibit 19) when she arrived at the Best Western Hotel to see Mr. Graff. There is no evidence that S.S. interacted with any hotel staff on any of the three nights. Mr. Amdurski testified that on the first night, he directed the Uber to bring S.S. to the side door of the hotel where he met her. They then proceeded up a back stairwell to his room. There is no evidence that any hotel staff member even saw S.S. that night.

[92] Several other circumstances cited by Mr. Amdurski in support of his mistaken belief in S.S.’s age are incapable of confirming whether S.S. was 18, 16, or 13 years of age. I note the following as examples.

1. S.S.’s breast size. Mr. Amdurski testified that the size of S.S.’s breasts confirmed to him that S.S. was 18. It is not reasonable to assume the age of a postpubescent woman by the size of her breasts.
2. S.S.’s apparent knowledge of how to ingest a line of cocaine. Mr. Amdurski’s testified that he prepared the line for her, and she ingested it in the same manner that he had just a moment before. She may have simply copied Mr. Amdurski or as Mr. Amdurski acknowledged, anyone who watched movies would know how to snort a line of cocaine.
3. Mr. Amdurski’s friends who were in his truck when he picked S.S. up the second night never commented on S.S.’s age. S.S. got into the truck at approximately 1:30 a.m. The lighting conditions would not have been good. In addition to that, the other people in the car knew Mr. Amdurski’s business and knew that he was driving S.S. to a client meeting that he had arranged. One person was another sex worker who was being driven to see Mr. Graff and the other person was the man S.S. met the third night in the hotel suite. Mr. Amdurski was unable to say why either of them would have commented on S.S.’s age.

[93] It is not reasonable for Mr. Amdurski to assume that S.S. must be her stated age because she posted a message on Whisper saying that she wanted to earn money quickly and easily and was then prepared to do what was necessary to achieve that with Mr. Amdurski’s assistance, including taking Ubers in the middle of the night, offering him her sexual services, and thanking him for his assistance.

[94] The reasonableness of the steps Mr. Amdurski took must be assessed in the circumstances known to him: W.G., at para. 60. Although I have dealt with the circumstances raised by Mr. Amdurski individually, I have considered them as a whole in concluding that Mr. Amdurski did not take all reasonable steps to ascertain S.S.’s age. In all of the circumstances, particularly the age difference between S.S. and Mr. Amdurski, S.S.’s obvious youthful appearance, Mr. Amdurski’s knowledge that people lie about their age online and his experience in the sex trade, more was required of him than simply asking S.S. her age. He did not even ask for any identification. Like the accused in R. v. W.G., he simply took S.S.’s word for it and enquired no further.

[95] In my view, like the accused in W.G. and Carbone, Mr. Amdurski was reckless as to S.S.’s age. He adverted to it in that he asked her in a text message, but once he saw her youthful appearance, he failed to take any other steps when further enquiry was required. As Mr. Jackson argued, S.S.’s appearance in the video evidence was somewhat “equivocal” in terms of her age, which is precisely why Mr. Amdurski was required to do more than he did to ascertain her age.

[96] In Carbone, Justice Doherty wrote at para. 130:

If the accused fails to take reasonable steps to determine the complainant’s age, he cannot advance the claim that he believed the complainant was the required age. The removal of a positive belief that the complainant was the required age, combined with recklessness as a basis for a finding of the required men rea, will, I think, leave few situations in which a person who engages in sexual activity with an underaged person and does not take reasonable steps to determine the age of that person, will not be found to have been at least reckless as to the true age of the complainant.

[97] This is not one of those few situations. The actus reus of these offences is not in dispute. Mr. Amdurski had sexual intercourse with S.S., a person who was 13 years old. I find Mr. Amdurski guilty of count 6, sexual assault. He also touched S.S., who was 13 years old for a sexual purpose. I therefore find him guilty of count 7, sexual interference.

[98] I turn next to the offences where the actus reus of the offences is not contested, leaving Mr. Amdurski’s mistaken belief in S.S.’s age the sole matter in issue.

Count 3 – Receive Material Benefit from Sexual Services of Person Under 18, s. 286.2(2)

[99] Mr. Amdurski testified that he received a booking fee of between $250 and $400 from Mr. Graff after S.S. provided sexual services to Mr. Graff for money.

[100] Mr. Jackson argued that the court should find Mr. Amdurski not guilty of the offence as charged, but guilty of the included offence of receiving a material benefit from sexual services of a person who is not under the age of 18.

[101] Section 150.1(5) applies to the offence under s. 286.2(2). The mistaken belief in age defence is negated unless the accused has taken all reasonable steps to ascertain the age of the complainant. I have rejected that defence for the reasons I have already outlined.

[102] I am satisfied beyond a reasonable doubt that Mr. Amdurski received a material benefit from the sexual services of S.S., a person under 18. I therefore find Mr. Amdurski guilty of count 3.

Count 8 – Obtain Sexual Services for Consideration of a Person under 18, s. 286.1(2)

[103] Mr. Amdurski admitted that he planned to exchange sexual services for money with S.S. when he arranged an Uber to pick her up and take her to his hotel. They did have sex, and Mr. Amdurski paid S.S. $500.

[104] Section 150.1(5) applies to this offence as well. Given my rejection of Mr. Amdurski’s mistaken belief defence for the reasons I have previously outlined, I am satisfied beyond a reasonable doubt that Mr. Amdurski obtained for consideration the sexual services of S.S., a person under the age of 18. I therefore find Mr. Amdurski guilty of count 3.

Count 13 – Communicate to Obtain Sexual Services for Consideration of a Person under 18, s. 286.1(2)

[105] Mr. Amdurski admitted communicating with both Mr. Graff and S.S. for the purpose of arranging a meeting between the two of them during which he understood that S.S. would exchange sexual services for money with Mr. Graff.

[106] Section 150.1(5) applies to this offence. Given my rejection of Mr. Amdurski’s mistaken belief defence for the reasons I have previously outlined, I am satisfied beyond a reasonable doubt that Mr. Amdurski communicated for the purpose of obtaining for consideration the sexual services of S.S., a person under 18. I therefore find Mr. Amdurski guilty of count 13.

Count 4 – Procuring, s. 286.3(2)

[107] Section 286.3(2) sets out alternate modes of committing the offence of procuring. Count 4 particularizes the mode. It charges that Mr. Amdurski did procure a person under the age of eighteen years, namely S.S., to offer or provide sexual services for consideration.

[108] “Procure” means to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged: R. v. Deutsch, [1986] 2 SCR 2, at pp. 26-27; R. v. Gallone, 2019 ONCA 663, at para. 61; R. v. Joseph, 2020 ONCA 733, at para. 65.

[109] Mr. Jackson submits that Mr. Amdurski did not cause, induce, or have a persuasive effect on S.S.’s sex work. He merely entered into a business relationship with S.S. and facilitated her sex work by setting up meetings with men. S.S. was already working as a sex worker when Mr. Amdurski met her. He simply provided services to S.S. that she requested. S.S. chose to engage in sex work of her own free will.

[110] Mr. Jackson’s submissions are aimed at refuting whether Mr. Amdurski procured S.S. to become a sex worker. The Crown is not required to prove that Mr. Amdurski induced or persuaded S.S. to become a sex worker. To prove the offence in s. 286.3(2), the Crown is required to prove that Mr. Amdurski caused or induced S.S. or had a persuasive effect on her to participate in a single act of selling her sexual services: Joseph, at para. 67.

[111] The former procuring section of the Criminal Code, s. 212(1)(d), required proof that the accused procured the complainant to become a prostitute. It read as follows: “Every one who procures or attempts to procure a person to become, whether in or out of Canada, a prostitute, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.”

[112] In 2014, that section was repealed and replaced by ss. 286.3(1) and (2). The relevant portion of s. 286.3(2) for the purpose of this case reads as follows: “Everyone who procures a person under the age of 18 years to offer or provide sexual services for consideration … is guilty of an indictable offence. The actus reus of this offence is the procurement (to cause or to induce or to have a persuasive effect upon) of a person under the age of 18 years to offer or provide sexual services for consideration.

[113] Coercion is not an essential element of procuring. Persuasion or inducement is all that is necessary.

[114] It is not necessary for me to decide whether S.S. asked Mr. Amdurski to hook her up with clients or whether she expressed an interest in his work with the escort agency to determine whether the Crown has proven this offence beyond a reasonable doubt. S.S. testified that she wanted Mr. Amdurski to connect her with clients because she wanted to make money.

[115] Prior to meeting Mr. Amdurski and his friend at the hotel suite in North York, S.S. and Mr. Amdurski had the following text conversation.

S.S.: Hey if there’s a job anytime soon, please let me know. Mr. Amdurski: Okok. What about now? S.S.: I can’t do now because school but I’m free after 1. Mr. Amdurski: U said anytime soon? Ok tonight? S.S.: How about tomorrow..? I have to study tonight but I’m free tomorrow. Mr. Amdurski: Didn’t you say to let you know if there’s a job soon? About a half an hour ago? My buddy that was in the car wants to see you. S.S.: Ahh sorry okay well I didn’t think you would reply. The soonest I can do is tomorrow night. Mr. Amdurski: Ok S.S.: Yeah sorry Mr. Amdurski: Okok. U sure u not around tonight? I can get u $500 overnight?

[116] Mr. Amdurski testified that S.S. had told him that she wanted to earn $500 a night. In this text conversation, he is attempting to persuade S.S. to meet with his friend that night and earn $500 for her sexual services. He ultimately persuaded her. The Crown has proved that Mr. Amdurski procured S.S. to provide sexual services for consideration beyond a reasonable doubt.

[117] The offence under s. 286.3(2) requires the Crown to establish that the person procured was under the age of 18 at the time of the offence. Section 150.1(5) applies to this offence. Given my rejection of Mr. Amdurski’s mistaken belief defence for the reasons I have previously outlined, and my finding that he was reckless as to S.S.’s age, I am satisfied beyond a reasonable doubt that Mr. Amdurski procured S.S., a person under the age of 18 years to provide sexual services for consideration. I therefore find him guilty of count 4.

Count 1 – Human Trafficking, s. 279.011(1)

[118] Mr. Amdurski is charged that he, between June 1 and 13, 2018, did recruit, transport, transfer, receive, hold, conceal harbour or exercise control, direction, or influence, over a person under the age of 18, namely S.S., for the purpose of exploiting or facilitating the exploitation of S.S.

[119] This offence has three essential elements, each of which must be proven by the Crown beyond a reasonable doubt. The elements are the conduct, the prohibited group, and the purpose: R. v. A.A., 2015 ONCA 558, at para.79.

[120] The conduct element is satisfied upon proof that Mr. Amdurski engaged in any one of the several types of conduct listed in the first part of s. 279.011(1), i.e., recruits, transports, transfers, receives, holds, conceals, or harbours. It is also satisfied upon proof that Mr. Amdurski engaged in any of the conduct listed in the second part of the section, i.e., exercises control, direction, or influence over the movements of S.S.: Gallone, at para. 33.

[121] The prohibited group element is satisfied upon proof that S.S. is under 18 years of age. The Crown can prove Mr. Amdurski’s knowledge of S.S.’s age by showing that he knew that S.S. was under the age of 18 or he was wilfully blind to that fact.

[122] The purpose element is satisfied upon proof that Mr. Amdurski intentionally engaged in any of the conduct described in s. 279.011(1) for the purpose of exploiting S.S.: A.A., at para. 82; Gallone, at para. 54. The Crown does not have to establish that Mr. Amdurski’s conduct resulted in the exploitation of S.S., only that exploitation was the purpose of his conduct: A.A., at para. 85.

[123] The word “exploiting” in s. 279.011(1) does not bear its ordinary meaning of taking advantage of someone. Rather its meaning is informed by s. 279.04, which reads as follows:

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.

[124] When applied to circumstances of this case, the issue is whether Mr. Amdurski’s conduct could reasonably have been expected to cause S.S. to believe that her own safety would be threatened if she failed to continue to offer sexual services.

[125] The word “safety” in s. 279.04 relates to the state of being protected from both physical and psychological harm: A.A., at para. 71.

[126] Mr. Jackson’s submissions focused on his argument that the Crown had not proven that the purpose of Mr. Amdurski’s conduct was to exploit S.S. In other words, Mr. Amdurski’s conduct did not give rise to a reasonable expectation that S.S.’s safety would be threatened if she failed to provide her sexual services.

[127] Ms. Gharabaway submits that Mr. Amdurski not only recruited S.S. to work for him in the sex trade, but he also exercised influence over her movements. Mr. Amdurski engaged in this conduct for the purpose of exploiting S.S. S.S. felt pressured by him to continue offering her sexual services for consideration. Ms. Gharabaway submits that her psychological safety was threatened by Mr. Amdurski’s conduct.

[128] Finally, Ms. Gharabaway submits that Mr. Amdurski either knew or was wilfully blind to S.S.’s age.

[129] I begin with Ms. Gharabaway’s submission that Mr. Amdurski recruited S.S. to work for him in the sex trade. I have a reasonable doubt about this based on Mr. Amdurski’s evidence that S.S. asked him to help her, and on my concerns about S.S.’s evidence.

[130] Mr. Amdurski’s evidence that S.S. asked him for his help after she learned that he had experience in the escort business makes more sense to me than S.S.’s evidence that the first time she discussed offering her sexual services for money was when he sent her a text message the second night asking her if she wanted to meet someone. S.S. was very vague about how it came to be that Mr. Amdurski arranged clients for her to meet. She guessed that he just did it automatically.

[131] There is evidence that S.S. was bold beyond her years and was prepared to take initiative. She was involved in the sex trade at the age of 13 before she encountered Mr. Amdurski. She sought tips from a support organization about how to be sure she was paid for her sexual services. She posted a message on Whisper, an app that she acknowledged contained a lot of “adult content.”

[132] The Crown has not proven beyond a reasonable doubt that Mr. Amdurski “recruited” S.S.

[133] I am satisfied beyond a reasonable doubt that Mr. Amdurski exercised influence over the movements of S.S. The Court of Appeal described “exercising influence over a person’s movements” as doing anything to affect the person’s movements. This includes anything done to induce, alter, sway, or affect the will of the complainant. Influence can be exerted while there is still scope for the person’s free will to operate: Gallone, at para. 47.

[134] The assessment of whether Mr. Amdurski “exercised influence” over S.S.’s movements must be considered in the context of the nature of their relationship and the impact of his conduct on S.S.’s state of mind: R. v. Ochrym, 2021 ONCA 48, at para. 29. The question is whether by virtue of his relationship with S.S., Mr. Amdurski was in a position to influence the movements of S.S.: Gallone, at para. 50.

[135] Exercising influence over a person’s movements includes not only physical movements, but non-physical movements, such as setting fees for sexual services, dictating rules for service and control of money: R. v. Sinclair, 2020 ONCA 61, at para. 11; R. v. Williams, 2021 ONSC 5600, at paras. 31 – 36.

[136] I find that because of the nature of the relationship he had with S.S., Mr. Amdurski was in a position to influence her movements, and he did so. In coming to this conclusion, I have considered the power imbalance in their relationship. Mr. Amdurski was a 36-year-old man with experience working in the sex trade. S.S. was a 13-year-old child who had worked in the sex trade for one month. S.S. wanted to earn money and Mr. Amdurski knew how to connect her with paying clients.

[137] Mr. Amdurski found the clients, arranged where and when the meeting would take place, set the fee for S.S.’s sexual services, and arranged S.S.’s transportation to and from the client meetings. In addition, he exercised influence over S.S.’s physical movements. In my discussion of the procuring charge, I referred to Mr. Amdurski’s attempts to persuade S.S. to offer her services on the third night after she told him that she was not available because she had to study. He ultimately succeeded in persuading S.S. to see him and his friend that night.

[138] Another example of Mr. Amdurski exercising influence over S.S.’s movements occurred on the second night after S.S. had finished seeing the client at the condo. She knew that another client had been booked for her, but she was feeling very uncomfortable and wrote Mr. Amdurski and asked, “Do I have to see that person?” Mr. Amdurski replied, telling her “It’s booked he’s a sweetheart. Ur car is 1 min away. It’s wayyyyyyy easier than this past guy I promis.” This response was Mr. Amdurski’s attempt to persuade S.S. to attend the second meeting.

[139] As I indicated previously, I reject Mr. Amdurski’s evidence that he told Arif to tell S.S. that she did not have to do anything she did not want to and that he would change the Uber order to take her home. Once he realized that Arif did not send that message to S.S., Mr. Amdurski did it himself. This is a fabrication.

[140] Both of these examples accord with the Court of Appeal’s description of “exercising influence” as, “like proposing an idea and persuading the person to adopt it:” Gallone, at para. 47.

[141] I turn next to the issue of the purpose for which Mr. Amdurski exercised influence over the movements of S.S. As I indicated, the Crown must prove beyond a reasonable doubt that Mr. Amdurski’s conduct could reasonably have been expected to cause S.S. to believe that her safety would be threatened if she failed to continue to offer sexual services.

[142] In Sinclair, the court listed several factors that might be relevant when determining whether conduct could reasonably be expected to cause complainants to fear for their safety. Several of those factors pertain to this case. I note the following.

1. S.S. was vulnerable. She was a 13-year-old child with little experience who was manipulated by Mr. Amdurski. She testified that Mr. Amdurski made her feel that he was doing good things for her. “He was giving me these drugs that were making me feel energetic, and like I could stay up for long periods of time, and he was giving me more money than I had ever seen in my life.”
2. Mr. Amdurski was a 36-year-old man experienced working in the sex trade.
3. Mr. Amdurski controlled the duration and locations of the meetings where S.S. exchanged sexual services for money.
4. Mr. Amdurski provided cocaine to S.S., who testified that she used it to help her get through what she was doing.
5. Mr. Amdurski pressured S.S. to provide sexual services after she indicated that she did not want to. S.S. testified that she felt that pressure. When she asked Mr. Amdurski whether she had to see the next client on the second night, and he told her it was booked, she testified, “So, what can I do?”
6. Mr. Amdurski stood to earn money from S.S.’s sale of her sexual services. As he testified, “S.S. was a nice girl, and she wanted to make some money. She told me about a horrible situation, and I heard that situation and it just happened to be that I can help her, and if I can make money while doing it, great. I wasn’t going to do it for free because that’s just the way – the nature of the business.”

[143] S.S. testified that she felt pressure from Mr. Amdurski to work when he asked. When she told him no, he continued to pressure her. She was unable to stand up to his pressure and relented.

[144] After considering the factors listed above and all of the circumstances, I am satisfied beyond a reasonable doubt that Mr. Amdurski’s conduct would cause a person in S.S.’s position to reasonably fear for her safety from a psychological perspective. I am further satisfied beyond a reasonable doubt that Mr. Amdurski exercised influence over S.S.’s movements for the purpose of exploiting her and ultimately to make money from her provision of sexual services.

[145] I deal now with the final element in s. 279.011, the prohibited group element. The Crown must prove beyond a reasonable doubt that Mr. Amdurski knew or was wilfully blind to the fact that S.S. was under 18 years of age.

[146] I am not satisfied beyond a reasonable doubt that the Crown has proven that Mr. Amdurski knew that S.S. was under 18 years of age or was wilfully blind to that fact. Mr. Amdurski denied knowing that S.S. was less than 18 years old and denied having any suspicions in that regard.

[147] The Crown submits that anyone seeing S.S. would know that she was not 18 years old. The Crown argues that Mr. Amdurski is not credible when he denies this.

[148] With respect, I do not find the image of S.S. in the video surveillance determinative of her age. She is youthful looking but I cannot say that it is obvious that she is less than 18 years old. People’s assessments of age based on appearance are very subjective. Their assessment can be affected by many things, such as their familiarity with people of that age.

[149] I am not persuaded that S.S.’s age is so obvious from her appearance that Mr. Amdurski must have known that she was less than 18 years old or must have suspected it and failed to inquire further because he wanted to avoid the truth.

[150] Having found that the Crown has proven the elements of conduct and purpose beyond a reasonable doubt, but not the prohibited group, I find Mr. Amdurski not guilty of count 1 contrary to s. 279.011(1), but guilty of the included offence of trafficking in persons, contrary to s. 279.01(1).

Count 2 – Material Benefit from Human Trafficking, s. 279.02(2)

[151] The Crown must prove beyond a reasonable doubt the following three essential elements of this offence:

1. The accused received a financial or other material benefit.
2. The benefit was derived from the commission of a trafficking in persons offence and the accused knew that.
3. The prohibited conduct in s. 279.011 occurred: R. v. Antoine, 2019 ONSC 3843, at para. 28.

[152] Mr. Amdurski testified that he received a booking fee of between $250 and $400 from Mr. Graff after S.S. provided sexual services for money to Mr. Graff.

[153] The Crown has established the predicate offence of trafficking in persons, contrary to s. 279.01, not s. 279.011.

[154] The Crown has proven beyond a reasonable doubt that Mr. Amdurski received a financial benefit, knowing that it was obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1). I therefore find him not guilty of count 2 contrary to s. 279.02(2), but guilty of the included offence under s. 279.02(1).

Conclusion

[155] For the foregoing reasons, the following verdicts will be recorded:

Count 1 – not guilty, but guilty of the included offence contrary to s. 279.01(1) Count 2 – not guilty, but guilty of the included offence contrary to s. 279.02(1) Count 3 – guilty Count 4 – guilty Count 6 – guilty Count 7 – guilty Count 8 – guilty Count 13 – guilty

Corrick J.

Released: March 3, 2023