COURT FILE NO.: CR-20-70000384 DATE: 20230321 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
His MAJESTY THE king – and – javar thomas Defendant
Monica Gharabaway, for the Crown Ari Goldkind, for the Defendant
HEARD at Toronto: March 13-17, 2023
reasons for judgment
These reasons for judgment are subject to a publication ban pursuant to s. 486.4(1) of the criminal code prohibiting the publication, Broadcast or transmission of information that could identiy the complainant or any witness in this proceeding. these reasons for judgement shall be anonymized prior to release for publication.
S.F. Dunphy J.
[1] Mr. Javar Thomas was tried before me on 22 counts within an original 52 count indictment. The remaining counts in the indictment were either dealt with under an earlier plea or were not proceeded with at this time. The 22 counts accuse Mr. Thomas of, among other things, sexual assault with a firearm, making death threats, various firearms offences and a variety of human trafficking-related charges. The complainant named in most of these is Ms. S. (J) while her first cousin M (J) is a complainant in certain other charges arising out of one incident in October 2019.
[2] The two complainants were the only witnesses at this trial which required a total of three and one-half days of evidence. Apart from their viva voce evidence there were two agreed statements of fact and a variety of exhibits including documents and photographs as well as text and voice messages exchanged between the accused and Ms. S. over popular smartphone applications.
Overview
[3] The incidents giving rise to these charges occurred in late 2018 through to late 2019. They involve Mr. Thomas and the two complainants: Ms. S. (now 30 years of age) and Ms. M. (now 27 years of age). The two complainants are first cousins and lived together for most (but not all) of the relevant time frame. In addition to being cousins and sometime roommates, they described each other as best friends and who confided in each other about almost everything.
[4] Ms. S. met Mr. Thomas casually on a single brief occasion with mutual acquaintances several years ago. The meeting was sufficiently brief and casual that she did not remember his name later. She began to get to know him when visiting someone else at Toronto East Detention Centre where Mr. Thomas was also detained in 2017. For a period of approximately one year while Mr. Thomas was completing his time in detention, they began to form a relationship. That relationship became more involved after Mr. Thomas was released from detention in November 2018. For the most part, the charges before me relate to events that occurred over the following thirteen months of the evolution of their relationship following Mr. Thomas’ release from custody.
[5] Within the space of a few weeks of Mr. Thomas’ release, Ms. S. had come to realize that for the time being their relationship was going to remain more casual than she hoped it would be. Mr. Thomas told her that he had had two baby mothers to deal with and he was trying to “fix things up” with one of them. He was also involved with other women. He would break off contact with Ms. S. periodically. While understanding the casual nature of the relationship, Ms. S. nevertheless clearly hoped that it would evolve into something more. She tried to leave him more than once but took him back soon afterwards.
[6] Nothing encapsulates the roller-coaster nature of Ms. S.’ emotions vis-à-vis Mr. Thomas better than a comparison and contrast of a string of WhatsApp text messages she exchanged with him near the end of the relationship. On October 25, 2019 she wrote a text message to Mr. Thomas praising him, professing herself to be madly in love with him and expressing the hope that “this never ends”. Then later in the message chain that same day she asked him for permission to keep $25 from her earnings to get food at McDonalds. Only four days later on October 29, 2019 (Mr. Thomas’ birthday) she wrote “[I] made you and handed you quite a bit of money and you act like I’m nothing…I really need you to let me go…you make me feel like I don’t wanna live anymore. You got what you wanted I’ve started to hate you”. After responding “beat it” to her on October 29, 2019 text, Mr. Thomas wrote her on November 2, 2019 “Don’t worry imma fix everything just now” to which Ms. S. replied “I trust you”.
[7] Both counsel described the relationship between the two as a toxic one in their closing arguments and it is hard to disagree with that assessment. None of this of course is the object of any of the charges before me but it does form part of the context in which the evidence of their words and actions must be assessed.
(a) First incident – December 2018
[8] Ms. S. described a violent incident that occurred within about a month or so of Mr. Thomas’ release in or around December 2018. She was lying in bed with Mr. Thomas at her apartment and was scrolling through messages on her phone. Mr. Thomas saw a text message on her screen from one of her ex-boyfriends whom Mr. Thomas considered to be an enemy. He took the phone from her and read the entire message, becoming visibly angry and upset. He got up, turned on the light and crossed the room to retrieve his grey and black fanny pack from which he extracted a gun. The gun was a black handgun that Ms. S. could only describe as being “police-style”. Mr. Thomas pointed the gun at her and said that he should “blow your brains out” or words to similar effect. He then told her to take her clothes off and she complied. He put a condom on the barrel of the gun and inserted it into her vagina announcing that he should “blow you away inside out” or words to similar effect. After this, he removed the ammunition clip from the gun. She could see then that the clip had bullets in it.
[9] Ms. S. testified in chief that it was Mr. Thomas who put a condom on the clip and then inserted the ammunition clip in her vagina. Under cross-examination however she was read a portion of her December 3, 2019 statement to police where she said that Mr. Thomas told her to put the condom on the clip and to put it inside her vagina and that she did so. After being reminded of this earlier evidence, she said that she could not now remember who put the condom on the clip or inserted it into her vagina. She was cross-examined about other details of the event that she had recounted in her police statement from December 2019. She reflected on each of them at some length and stated that she simply could not remember those some of those additional details now in 2023. She could not remember any details of what happened next either.
[10] The relationship between the two continued thereafter much as it had before this incident with the one difference that Ms. S. now had grown to fear Mr. Thomas.
(b) Second incident: June 2019
[11] A second incident occurred also at her apartment in or about June 2019. Ms. S. was then sharing her apartment with her cousin, the second complainant Ms. M. As a favour to a friend, Ms. S. had agreed to allow the friend’s brother to stay in her apartment that night. She could not remember if there were two or three men who ended up staying with her in addition to her roommate and cousin Ms. M. Nothing turns on that question.
[12] Mr. Thomas came by her apartment unexpectedly at about 7:00 am. He called her from downstairs to let him in but she did not answer for several minutes. She hurriedly got the men to leave her apartment and then answered his call. She told him that she was on the phone when he had called earlier. Mr. Thomas called her a liar, remarking that she would normally answer his calls even if she was with a client. He told her to come downstairs to let him in and she did so hoping that it “would make it better” if she did what he asked.
[13] Mr. Thomas was visibly angry when she admitted him to the building. Once in the elevator he hit her in the face with his hand and then put a gun to her head and said that he should blow her brains out. The elevator came to a stop at a different floor and a woman got in who noticed Ms. S. crying. She asked if Ms. S. was OK and Mr. Thomas answered her that “if you cheated on your husband, how would he feel?”. The woman said nothing further and Ms. S. went back to her apartment with Mr. Thomas. She said the gun he was holding appeared to be the same gun she had seen him with earlier.
[14] Back in the apartment, she lay down beside her cousin and proceeded to delete from her phone anything she thought might upset Mr. Thomas. While this was happening, Mr. Thomas looked into the room and pointed the gun at her again asking her if she had something to say. She said no. Mr. Thomas left the room. Later he told her by way of apology that if she had answered the door the first time, none of this would have happened. She believed his apology was sincere at the time.
[15] Exhibit 2 is a photograph Ms. S. took of her own face a couple of days later showing a black eye. She said that the photo had been enhanced and filtered by her on Snapchat to make her black eye “look better”. I accept Ms. S.’ evidence that she had a black eye from this incident that persisted for several days.
[16] However, I make such finding attaching only very slight weight to Exhibit 2. The photograph in question is one that Ms. S. was unable to date with much certainty. As well, she testified that it had been touched up by her using filters to make her look “better”. A photograph that does not reflect the reality of what is depicted at the time it is taken adds little value to the testimony of the witness explaining what the unvarnished reality was. Digital photographic evidence as a medium is highly susceptible to manipulation as it is and must always be treated with care if there is any indication of alterations having been made.
(c) Agreement to let Mr. Thomas control her money
[17] Several weeks after the June 2019 incident, Mr. Thomas contacted Ms. S. and initiated a conversation about his becoming involved in her escorting business. It seems likely that this occurred in early September 2019 but nothing turns on the precise date. The human trafficking counts in the indictment use a date range beginning on August 1, 2019 which would appear to be a conservative (i.e. early) estimate.
[18] Mr. Thomas told Ms. S. that he was better with money and proposed acting as her “financial advisor”. He suggested that she’d be able to get a condominium and build a life. He would take all of her earnings and he would give her what she needed. She agreed to the proposal seeing it as a way of the two of them building something together. She wanted him around and this way she would see him more often.
[19] As this “financial advisor” relationship unfolded, Mr. Thomas got involved in most aspects of her escorting business. She would show him her draft ads or show him what photographs she proposed uploading to various web sites. He had her telephone password and would take it on himself to answer client inquiries received on her phone on her behalf. He was consulted by her on rates, advertisements and photographs to be used. On some “in” calls, Mr. Thomas would wait in the bathroom or the kitchen of her apartment, emerging when the client left to collect the money she had received. He also drove her to two at least two “out” calls that she could recall.
[20] The text and voice message traffic exchanged between them on WhatsApp captures a great deal of Mr. Thomas’ deep level of involvement in her escorting activities in this time frame (September through November 2019). The messages reflect her proposing advertisements or pictures to be used by her and waiting for his approval. They also reflect her reporting back to him on what she had earned and what he had collected from her. Some messages report on what she spent buying supplies or asked Mr. Thomas’ permission to keep some proceeds of her work to buy food while out of town. Ms. S. estimated that she worked almost every day and earned from $200 to $600 per night. Mr. Thomas took from her substantially all of her earnings as she collected them. When she asked him for details about what he had done with the money, he gave her vague answers about investing it or else got angry with her.
[21] While she worked most days, she agreed that she did not need his permission to take a few days off such as when she went to visit an aunt in Oshawa. These off days were however quite infrequent.
[22] On one occasion he arranged a call on her behalf for a service that she had made clear to him that she would not do. He beat her with a belt when she balked at going through with it.
[23] In addition to working as an escort in Toronto, Mr. Thomas assisted her in carrying on the escort business out of hotels in Niagara Falls, Ontario. On these occasions, he drove her to the hotel and dropped her off. Exhibit 4 contains receipts evidencing three such trips to Niagara Falls:
a. Ramada Inn October 10–12, 2019; b. Ramada Inn October 17-21, 2019 c. Days Inn October 21-27, 2019 d. Days Inn November 6-9, 2019
[24] The hotel invoices for the October 17-21 and the October 21-27 stays include charges for parking and include particulars of the make and plate number of the car parked that Ms. S. identified as the Mercedes driven by Mr. Thomas. Ms. S.’ phone contained a video clip of Mr. Thomas driving a Mercedes. On those occasions, Mr. Thomas was present in the hotel or in the area while she worked. On the other occasions he dropped her off at the hotel.
[25] Ms. S. said that she tried to end the arrangement with Mr. Thomas but he said that she had to pay him money to leave.
(d) October 19, 2019 incident at Ramada Inn Niagara Falls
[26] On October 19, 2019 Ms. S. was working out of the Ramada Inn in Niagara Falls. Her friend Ms. M. had arranged to come to meet her there. Ms. M. was dropped off at the hotel and planned to spend the night in Ms. S.’ room. Ms. M. did not have a car nor sufficient funds with her to get back to Toronto on her own.
[27] Ms. M.’s boyfriend had recently tried to convince Ms. S. to leave Mr. Thomas and to work for him instead and Mr. Thomas was angry about this. When Ms. S. told Mr. Thomas of Ms. M.’s intended stay shortly before she arrived, Mr. Thomas said that Ms. M. could not stay. Ms. M. arrived at the room only a few minutes before Mr. Thomas did. She was distressed to hear from Ms. S. that she could not stay because she did not have any alternative arranged nor sufficient funds with her to return home or make other arrangements to stay on her own. Ms. S. told her that she would try to work something out with Mr. Thomas when he got there and Ms. M. was about to call her mother for help when Mr. Thomas arrived moments later.
[28] Mr. Thomas was visibly angry to see Ms. M. at the hotel. He slapped Ms. S. in the bedroom area within the sight of Ms. M. The hotel room was a suite with a living room area and a bedroom area separated by doors. He took Ms. M. by the collar and pulled her into the bedroom area, pushing her on to the bed. He pulled out his gun and pointed it at both women asking them if they thought he was a “joke”. Both were terrified. After a time, Mr. Thomas stopped shouting. Ms. M. described it as “weird” as if a switch had been thrown.
[29] Ms. S. had an appointment for a Skype call. Mr. Thomas left the bedroom area and went to the bathroom while Ms. S. closed the door and attended to her call. Ms. M. was sitting on the living room couch looking at her phone and did not notice Mr. Thomas go to the bathroom. After a time she heard him leave the bathroom and looked up. He had a gun in his hand and his pants were down or off. He put the gun to her face and told Ms. M. “you are going to suck my dick right now or I’ll blow your brains out”. She pleaded with him and said no. He told her that she had two seconds to do as he asked or else. She complied.
[30] After a time, he pulled her up and walked her over to the couch. He ordered her to pull her pants down and then proceeded to enter her vagina with his penis from behind. This went on for a while when Mr. Thomas stopped because he thought he heard a sound from the bedroom. He stepped over to look into the bedroom and she pulled her pants back up. Mr. Thomas returned and made her take her pants back down. He resumed penetrating her vagina from behind. She was crying and he ordered her to stop crying.
[31] When the Skype call ended, Ms. S. went to the living room area and opened the doors. She saw Ms. M. bent over the couch with her pants down and Mr. Thomas standing there with his own pants down. Ms. M. appeared upset to her. She exclaimed “What the f***!” and immediately went back into the bedroom. Mr. Thomas followed her and hit her in the head with the gun. He then said words to the effect of “Watch how sick I can be” and called Ms. M. to come into the room. When she got into the room he pointed the gun at her and ordered her to take off her clothes.
[32] Neither woman was able to give any reliable indication of how long the next series of events lasted, both indicating that they seemed to go on “forever”. Neither was able to say where the gun they had last seen in Mr. Thomas’ hands ended up. They both described Mr. Thomas requiring them to remove their clothing and ordering Ms. S. to perform cunnilingus upon Ms. M. while he entered her vagina from behind and then reversing roles, requiring Ms. M. to perform cunnilingus on her cousin while Mr. Thomas entered her vagina from behind.
[33] Ms. M. remembered two additional details of this part of the incident that Ms. S. did not recall. Ms. M. recalled that Mr. Thomas required the two women to “scissor” for him, a manoeuvre involving rubbing one vagina against the other. She also remembered that at another point Mr. Thomas had removed the ammunition clip from his gun and inserted it into Ms. S.’ vagina. The latter detail was recalled by Ms. M. after a specific prompt under cross-examination. While Ms. S. did not recall either of these two details, she was not asked any prompting questions in chief or in cross-examination of sufficient specificity to have elicited these details if indeed she had preserved a memory of either. I do not consider her omission to recall these details spontaneously or with only vague prompting to be indicative of any lack of candour or sincerity on her part.
[34] Both women described themselves as being profoundly upset and disgusted by what Mr. Thomas compelled them to do. Both described themselves as being in fear of Mr. Thomas when they complied with his commands.
[35] Later that night, Ms. S. had to leave to attend a client call nearby. She persuaded the client to make the call a “duo” call in order to have Ms. M. accompany her. The two of them left together and upon their return to the hotel, Ms. S. turned over to Mr. Thomas the earnings of both.
Findings regarding credibility of witnesses
(a) Ms. S.
[36] The defence strongly urged me to discount almost all of Ms. S.’ evidence as being unworthy of belief and insufficient to discharge the Crown’s burden of proving each count in the indictment beyond reasonable doubt.
[37] I was urged to discount Ms. S.’ testimony by reason of a prior conviction for providing false evidence to a court. I am persuaded that her explanation of that event in her life is a satisfactory one that need not preclude me from crediting her testimony in this proceeding as sincere.
[38] Her uncontradicted account of the events leading to the conviction was that she had made a complaint to police about an abusive former boyfriend. The boyfriend contacted her and threatened her that things would be worse for her if she did not recant. She did as he asked and provided police with a false statement instead. She was convicted not for having recanted but for having made that second, false statement. She pleaded guilty and received community service and a conditional discharge as a result. She told me that she learned her lesson from that incident including the realization that her actions on that occasion had the effect of enabling her abuser to harm others.
[39] The fact of a prior conviction of this nature is certainly a concerning fact that warrants closer examination by a trier of fact. Upon having conducted that examination, I am satisfied that this valid concern may safely be discounted here. I am satisfied that she has indeed learned her lesson from that prior experience. As well, the situation here is quite the inverse of what happened on the earlier occasion.
[40] The defence suggested that Ms. S. was motivated to make allegedly false reports to police in December 2019 and April 2020 by reason of jealousy and a desire for revenge against Mr. Thomas after having learned in early November of the seriousness of Mr. Thomas’ relationship with a woman named Vanessa. This knowledge, it was suggested, dashed Ms. S.’ hopes of having a closer relationship with Mr. Thomas herself and led her to seek revenge upon Mr. Thomas.
[41] Ms. S. was quite candid in her testimony both as to her hopes for a closer relationship with Mr. Thomas and her acceptance of the reality of the situation. I have referenced the chain of messages exchanged with him over WhatsApp between October 25 and November 3, 2019 that illustrates this up and down relationship. Ms. S. tried to leave Mr. Thomas on multiple occasions before and after she first approached police on December 3, 2019 and always found herself taking him back. While it is impossible to exclude jealousy as playing some role in the back of her mind when she went to police, I am inclined to give far greater weight to the evidence of the sense of relief she felt that with Vanessa in his life, Mr. Thomas might finally leave her alone as she frequently asked him to do in that era. There is ample confirmation in the contemporary exchanges between the two of Ms. S.’ pleas to Mr. Thomas to leave her alone, of the fear she had of him and of the growing health complications that she was developing that she attributed to the stress he was causing her. Mr. Thomas being distracted by a Vanessa was in a significant way a relief to her even if she had not yet fully cured herself of her love for him. If jealousy arising from something she learned a month prior played a role in motivating her to go to police on December 3, 2019, that role was a purely subordinate one and was dwarfed by her overwhelming desire to be free of the fear and stress that his involvement in her life was causing.
[42] Mr. Goldkind suggested that the “numerous omissions and inconsistencies” in Ms. S.’ evidence must weigh heavily against crediting her evidence with sufficient weight to dispel reasonable doubt. Mr. Goldkind placed considerable emphasis on the number of times Ms. S.’ evidence in chief omitted this or that detail that she had mentioned in one of her prior statements or which were mentioned by another witness but not by her. I have considered each of the alleged omissions mentioned and consider that none of them can be characterized as particularly material or difficult to understand in context.
[43] As a general matter the failure of a witness to remember every single detail of an event that was recounted on an earlier occasion without a specific prompt to draw it out of her in questioning says little to nothing about the sincerity of the witness in most cases. Where the omission relates to an essential element of the charge, the examiner in chief will generally seek to refresh the witness’ memory by reference to the earlier statement if need be.
[44] This category of omission includes the failure of Ms. S. to have volunteered evidence about an occasion where Mr. Thomas allegedly had sexual intercourse with her after an incident that she described took place. She did not deny that the sexual intercourse had taken place, she simply said that she could not now remember whether it had one way or the other. That particular occasion of sexual intercourse between them formed no part of the charges against him and evidence of it was essentially irrelevant to the charges arising out of what occurred earlier. It is and was simply a collateral fact of no relevance beyond her failure to have recalled it. A similar omission was the failure of Ms. S. to recall a second occasion where Mr. Thomas removed the ammunition clip from the handgun with which he had threatened Ms. S. earlier and either inserted it himself into her vagina or made her do so herself. That she should have omitted recounting even such a lurid detail as this in the context of an ordeal that included being hit with a gun, having a gun pointed at her in a menacing fashion, being forced to have sexual contact with her first cousin and being sexually assaulted by Mr. Thomas elicits no surprise from me. She candidly admitted that the traumatic events of that night were something of a blur and a memory that she was trying hard to suppress. The fact that an open-ended and insufficiently precise question failed to jog her memory is similarly unsurprising in the full context. Finally, this category of immaterial or unremarkable omission includes Ms. S.’ failure to have mentioned to police in her December 3, 2019 statement that she had met Mr. Thomas briefly years earlier. The prior meeting she described was fleeting and entirely unremarkable and she said that she did not even remember his name from that occasion.
[45] It is true that Ms. S. quite frequently took lengthy pauses prior to answering questions and even so often answered either “I don’t remember” or “I’m not 100% sure” or words to similar effect. Mr. Goldkind suggested that I should view this demeanor and behaviour as something of a red flag indicating a witness who was trying to keep her story straight relative to prior versions or who was simply not being sincere. I find myself in entirely the opposite camp.
[46] A large number of her “I don’t remember” responses were in response to prompts from the Crown seeking to expand upon or explain a circumstance that might be expected to be helpful to the Crown. In other words, her “I don’t remember” answers were as likely to be in relation to information that may have been helpful to the Crown as to the Defence. Throughout I found Ms. S. to be doing her best to answer the questions put to her as best she could and to be as candid about things as best she could, taking care to avoid embellishment or exaggeration.
[47] A significant number of text and voice messages from Ms. S.’ phone only emerged during the course of her evidence. These emerged as a result of information candidly volunteered by Ms. S. during her evidence in chief which the defence followed up on. In her police interviews, Ms. S. showed police the messages she thought responsive to the questions she was asked during those police interviews and these were recorded by police via screen shots. Police did not take possession of her phone with the result that only a portion of the message traffic was in the hands of the Crown at the start of the trial. However, Ms. S. did sign a consent to permit police to examine her phone in depth if they wished at the time of her second interview in April 2020. She showed herself willing to share whatever she was asked to share and did so without hesitation or resistance as and when asked. None of this would be the expected behaviour of someone who was seeking to perpetrate a fraud on police or the court.
[48] I place on a slightly different plane her evidence about the theft of a safe. Among the text message chains police extracted from Ms. S.’s phone during the trial was a text message chain from late September 2019 evidencing an occasion where Ms. S. allowed herself to be pressured by Mr. Thomas to steal a safe from a friend of hers. The safe turned out to contain a significant quantity of cash. The exchange makes it clear that Mr. Thomas pressured a very nervous and reluctant Ms. S. into doing this for him and that the proceeds were kept by him and apparently used to purchase an automobile. This exchange is in fact a rather graphic and powerful illustration of the high degree of Mr. Thomas’ influence and direction of Ms. S. at this time even if the influence on this occasion was not directed to exploiting the sale of sexual services that forms part of the human trafficking and procuring set of charges faced by Mr. Thomas here.
[49] Mr. Goldkind cross-examined Ms. S. about this incident in a very oblique way that left her quite confused about what he was asking for some time. He asked her very generally if there was anything connected to the case involving a safe. These questions drew no volunteered memory from the witness although, to be fair to her, there are no issues connected with this case involving a safe. He showed her a fragment of the text exchanges I summarized above. He scrolled through several pages of the exchange at high speed. Once she figured out what he was actually asking her about, she volunteered the complete story. Importantly, the story she volunteered corresponded quite accurately to the text message exchange that there is no reason to believe she had seen for quite some time, the bulk of it having been “speed scrolled” before her only while on the stand. Whether Ms. S. initially withheld the story about the safe because she thought it was unconnected to the case (it was) and was deeply embarrassed by what she had been pressured by Mr. Thomas to do (she was) or whether she had no present memory of this incident until her memory was refreshed with a specific-enough question is a distinction without a difference. Neither conclusion undermines her credibility in a material way.
[50] Ms. S. was given the opportunity to review the transcripts of her two prior statements to police and her preliminary inquiry testimony a couple of weeks before testifying. She explained that although she had adequate opportunity to review them, she did not in fact do so. I can surmise with little difficulty why she may have chosen not to review them, but at all events it was plain to me that she was being sincere in giving that answer. She did not read them in advance and her evidence in court reflected the state of her un-refreshed memory three and four years after the events. Were she trying to harmonize different fictional accounts of the same events, she would hardly have missed an opportunity to study her prior statements meticulously. She clearly did not do that.
[51] This brings me to the question of what effect if any I ought to give to the Crown’s submission that Ms. S.’ evidence must be examined through the lens of the trauma that she has suffered. Mr. Goldkind objected strongly to this suggestion due to the risk that viewing her evidence through that lens risks offending the presumption of innocence and reversing the Crown’s burden of proof. One cannot assume the existence of the very events that the trial is tasked with determining the truth of, he suggested, because doing so shifts the burden to the defence who must effectively prove a negative fact.
[52] While on the surface an attractive argument, it is nonetheless wide of the mark. There is a very material difference between a trier of fact rejecting a complainant’s evidence about an incident or being left in a state of reasonable doubt about it by reason of myth-based assumptions as to how a victim of the type of crime in consideration ought to act in the circumstances on the one hand and a trier of fact assessing that same evidence without preconceived notions of how a victim of the type of event under examination might be presumed to behave on the other. The former is an error of law that our appellate courts have often and consistently called out; the latter is a common-sense duty of any trier of fact.
[53] It would clearly be wrong of me to assess the veracity of Ms. S.’ evidence by assuming its truth and assuming that as a result that she is a victim of the very event whose existence I am charged with examining. It would also be wrong for me to reject her evidence about that same alleged event by making arbitrary and erroneous assumptions about how she ought to have acted were the allegations true. Where the events being placed under the microscope in a trial setting are as trauma-inducing as the ones under examination here, common sense and an avalanche of appellate authority combine to direct that the trier of fact must be as alive to the possibility of the evidence being fabricated as the trier of fact must be to the possibility that if true, some apparent anomalies in the manner of its presentation might be the product of trauma and not unskillful deception.
[54] At all events, there is very substantial corroborating evidence of significant aspects of the traumatic events in question here. Ms. M. was an eyewitness to the October 2019 incident and corroborated the evidence of Ms. S. in all material respects. The record of text messages and voice messages corroborates the exploitative and manipulative behaviour of Mr. Thomas and the extremes of both love and fear of him that she repeatedly expressed. The same record corroborates the numerous explicit threats of death and violence made by him against her or her family.
[55] I do not examine her evidence assuming it to be true. I examine her evidence in the context of all of the evidence adduced to assess whether at the end of the day it leaves me with a reasonable doubt as to any of the essential elements of the 22 charged crimes that I am required to consider.
[56] In summary, I found Ms. S. to be a careful witness. Her evidence was compelling, first-hand evidence and finds significant corroboration in the exhibits as well as the evidence of Ms. M. Her evidence also withstood a very thorough cross-examination and was essentially unshaken. I attach a great deal of weight to Ms. S.’ evidence.
(b) Ms. M.
[57] The defence suggested that Ms. M.’s account of the events of October 19, 2019 in the Ramada Inn should be considered as nothing more than a case of two close friends colluding, Ms. M.’s evidence being a regurgitation of a rehearsed story to help her close friend and cousin Ms. S. That is a conclusion that I find myself unable to draw.
[58] Ms. M. was a very precise and careful witness. She withstood a very tough cross-examination. Her evidence was compelling and compellingly given. She had excellent reasons for remembering the events of the night in crisper detail than Ms. S. for whom the events of October 19 were noteworthy but nevertheless one event in a series of traumatic events arising out of her complicated relationship with Mr. Thomas.
[59] The events of that night were very obviously seared into Ms. M.’s memory and she gave a detailed and highly credible account of them. While Mr. Goldkind sought to impeach her with “important” details that she had neglected to mention in chief, such oversight is to be expected in an examination in chief offering limited scope to prompt or suggest. Such an oversight is entirely natural and gave me no concerns whatever that she was a false or rehearsed witness. To the contrary, I found Ms. M. to be a highly credible and reliable witness and attribute the greatest of weight to her evidence of the events of that night.
Findings in relation to handgun
[60] There is evidence of Mr. Thomas possessing a firearm on numerous occasions and variously hitting people with it, pointing it at people, threatening people with it or inserting it into the vagina of Ms. S. on one occasion. The instances where one or the other of the two witnesses saw Mr. Thomas with a firearm cover the date range from December 2018 until November 2019. In each of the three incidents where there is evidence of Mr. Thomas using a handgun (December 2018, June 2019 and October 2019), I find that the firearm seen in Mr. Thomas’ possession by Ms. S. or Ms. M. as the case may be, was a working, loaded handgun.
[61] In making this finding, I am in particular relying on the following evidence:
a. The evidence of Ms. S. and Ms. M. who saw bullets in the ammunition clip when Mr. Thomas removed the ammunition clip from the firearm in front of each of them (December 2018 in the case of Ms. S. and October 2019 in the case of Ms. M.); b. The evidence of each of Ms. S. and Ms. M. regarding the manner in which Mr. Thomas handled the firearm as if it were a real firearm capable of harming them or “blowing [them] away” and intending it to be understood by them to be such; c. The evidence of Ms. S. that the firearm that she saw in Mr. Thomas’ possession in December 2018, June 2019 and October 2019 appeared on each occasion to be the same black, police-style firearm each time; d. The evidence of Ms. S. that Mr. Thomas came to her apartment early one morning in November 2019 shortly after his birthday and that she learned from him that he had been stopped by police in a car with a gun with another girlfriend Vanessa and somehow managed to make his way to her apartment; e. The evidence of Ms. S. that after the incident of Mr. Thomas being stopped by police with a gun in his car that she never saw him with a gun after that; f. The voice message from Mr. Tomas (Ex 6, November 26, 7:33pm) boasting that he could easily acquire a gun; and g. Ms. S.’ explanation of the context of the November 26, 2019 voice message which followed (i) a threat by Mr. Thomas to shoot her mother; and (ii) Ms. S.’ response questioning whether he even had a gun anymore.
Findings in relation to specific counts
[62] I have reviewed my findings in relation to the credibility of the two witnesses who testified and the firearm that was used on three occasions by Mr. Thomas. My overview of the facts in the preceding section represents my specific findings based upon the evidence that I have accepted. In this section, at the risk of some repetition, I summarize my findings of fact in relation to each of the 22 specific counts of the indictment that are before me.
(a) Count 23 – sexual assault with weapon Ms. S. s. 272(1)(a)
[63] I find that the Crown has proved beyond a reasonable doubt that Mr. Thomas sexually assaulted Ms. S. in or about December 2018 using for this purpose a loaded handgun. I accept Ms. S. evidence that she and Mr. Thomas were lying in bed, Ms. S. occupied in looking over messages on her telephone. Mr. Thomas noticed a message from an ex-boyfriend of hers whom he considered to be an enemy. He seized the telephone from her and, upon reading the message became angered. He got up, turned on the light, removed a handgun from the grey and black fanny back pointed it at her and said that he should blow her brains out. He then ordered her to remove her clothes. She complied. He placed a condom on the handgun and inserted same into her vagina and threatened to blow her away from the inside out. Ms. S. did not consent to being assaulted in this fashion, he was well aware that she did not consent and the circumstance of inserting the gun into her vagina was unquestionably of a sexual nature. She was able to ascertain that the handgun was a loaded handgun when she saw bullets in the ammunition clip after he removed it.
[64] A guilty verdict shall be entered in respect of this Count 23.
(b) Count 25 – death threat to Ms. S. s. 264.1(1)(a)
[65] I find that the Crown has proved this charge beyond a reasonable doubt.
[66] Ms. S.’ testimony regarding the numerous death threats that punctuated the toxic relationship between herself and Mr. Thomas was credible, compelling and very substantially corroborated by instances of death threats in text and voice messages from Mr. Thomas as well as by Ms. M. (in respect of the October 2019 incident at the Ramada Inn). I shall not attempt an exhaustive catalogue of the death threats made by Mr. Thomas and directed at Ms. S. for which clear and compelling evidence was adduced. The following catalogue will serve:
a. December 2018: in person threat to blow her brains out after pointing a gun at her in the bedroom (see further description re Count 23); b. June 2019: in person threat in the elevator at her residence to “blow her brains out” after pressing the barrel of a gun to her head; c. Exhibit 9 – August 26, 2019: voice message communicated to Ms. S. where Mr. Thomas threatened to give Ms. S. a “head shot” and she testified that this referred to shooting her in the head; d. Exhibit 4 – November 2019 WhatsApp message: “U better start thinking b4 u crack to me b4 I loose control and off you” (translated with the aid of Ms. S. as: “You better start thinking before you talk to me before I lose control and kill you”); e. Exhibit 25 – November 22, 2019 4:18pm: WhatsApp message communicated to Ms. S. - “make sure Michael bouler protects you cause I’m coming for your head and I don’t care I want the whole world to see”; f. Exhibit 6: November 22, 2019 4:38 pm: communicated via voice message to Ms. S. - “stop saying the wrong things to me” because “like, I’m at the point of blowing your head off right now”; g. Exhibit 26 – December 5, 2019 3:19 and 3:24 am: WhatsApp message “I swear to god I’m going to murder you….I do what I want in this life on earth like every other maniac …now m going to get you like the boogie man…n one finding me if you think you dumb f**s think to where I am”.
[67] I am satisfied that each of the foregoing threats to kill Ms. S. were communicated by Mr. Thomas to Ms. S. during the offence period specified (December 1, 2018 through December 31, 2019).
[68] A verdict of Guilty shall be entered on this Count 25.
(c) Count 26 – point firearm to Ms. S. s. 87(1)
[69] I find that the Crown has proved beyond a reasonable doubt that Mr. Thomas pointed a handgun at Ms. S. in December 2018, June 2019 and October 2019. My findings in relation to the gun seen by her in his possession on each of these occasions being a loaded, operating handgun are summarized earlier.
[70] My findings in relation to this charge and the December 2018 incident are summarized in my findings in relation to Count 23 and Count 25.
[71] The June 2019 incident occurred at Ms. S.’ apartment building. On that occasion, Ms. S. delayed admitting Mr. Thomas to her building at approximately 7 am when he arrived without warning while she had other visitors in the apartment. After seeing her visitors out, she went downstairs to admit him. In the elevator, he pointed a handgun at her and threatened to kill her. He put the gun against her head. Later, inside the apartment he pointed it at her again. She believed that the gun she saw on this occasion was the same handgun that she saw in Mr. Thomas’ possession in the December 2018 incident.
[72] The October 2019 incident occurred at the Ramada Inn in Niagara Falls when Ms. S. was there with her cousin Ms. M.. Soon after arriving in the suite, Mr. Thomas pushed Ms. M. on to the bed where Ms. S. was already seated and vented his anger. He pointed his handgun at both of them and asked if they took him for a joke.
[73] A guilty verdict shall be entered for this Count 26.
(d) Count 27- use firearm indictable offence s. 85(1)(a)
[74] I find the Crown has proved beyond a reasonable doubt that Mr. Thomas used a firearm while committing the following indictable offences:
a. Count 23, Count 25 and Count 26 in relation to the December 2018 incident at Ms. S.’ High Park area apartment; b. Count 25 and Count 26 in relation to the June 2019 incident at Ms. S.’ apartment; c. Count 35 and Count 41 in relation to assaulting Ms. S. and the sexual assault of Ms. S. that occurred in the bedroom area of the Ramada Inn hotel in Niagara Falls on or about October 19, 2019; and d. Count 36, Count 40 and Count 42 in relation to the sexual assault of Ms. M. that occurred in the suite rented by Ms. S. at the Ramada Inn hotel in Niagara Falls on or about October 19, 2019.
[75] A guilty verdict shall be entered on this Court 27.
(e) Count 29 – possess firearm when prohibited s. 117.01(1)
[76] Exhibit 32 contains the admission that Mr. Thomas was subject to multiple firearms prohibition orders pursuant to s. 109 of the Criminal Code during the period of time specified in the indictment. I have found that the Crown has proved beyond reasonable doubt that Mr. Thomas possessed a loaded handgun on two occasions in Ms. S.’ High Park apartment and used it to commit various of the offences charged and for which I have found him guilty beyond reasonable doubt arising from the incidents in December 2018 and June 2019 at Ms. S.’ High Park area apartment. The Crown has proved all of the essential elements of this offence beyond a reasonable doubt in respect of these two incidents.
[77] A verdict of guilty for this Count 29 shall be entered.
(f) Count 30 – assault with a weapon (belt) on Ms. S. s. 267(1)
[78] I find that the Crown has proved this charge beyond a reasonable doubt.
[79] I accept Ms. S. evidence that after Mr. Thomas began to become directly involved in the management of her escort activities, he took it upon himself to make appointments for her without consulting her and using her phone for which he had the password. Knowing that Ms. S. had a list of services that she would not perform, Mr. Thomas nevertheless set up appointments with clients to receive the very services he knew she did not agree to provide, in this case unprotected sex. When Ms. S. balked at providing the service that he had agreed on her behalf that she should do, Mr. Thomas took his belt and beat her saying “act like a child; be treated like a child” or words to similar effect. A belt used in this fashion satisfies the definition of a weapon in s. 2 of the Criminal Code as a thing used to cause injury to a person.
[80] There can be no doubt that this application of force by Mr. Thomas to Ms. S. was intentional, involved the use of a belt as a weapon, was without her consent and in circumstances where he was aware that it was without her consent.
[81] A guilty verdict shall be entered for this Count 30.
(g) Count 31 – careless use of firearm s. 86(1)
[82] I find that Mr. Thomas used the firearm possessed by him in a careless manner – being a marked departure from the standard of care of a reasonable person - when:
a. He removed the handgun from his fanny pack in December 2018 and used the handgun to threaten Ms. S. and to insert it into her vagina; b. He pointed the handgun at Ms. S., hit her and then put the gun up against her head in the elevator of Ms. S.’ apartment building and then pointed the gun at her in her apartment in June 2019; c. He pointed the gun at Ms. S. and Ms. M. and then placed the gun on the dresser in the bedroom area of the Ramada Inn suite and asked Ms. M. and Ms. S. whether either of them thought he was a joke; d. When he pointed the handgun at Ms. M. and threatened her with it in the living room area of the Ramada Inn incident on or about October 19, 2019 and then pointed it at her again when he ordered her to remove her clothing in the bedroom area; and e. When he hit Ms. S. with the handgun and threatened her with it during the same Ramada Inn incident in or about October 19, 2019.
[83] The facts of each of the incidents are described in connection with other specific counts of the indictment. I find that the Crown has discharged its burden of proving this offence beyond a reasonable doubt.
[84] A verdict of Guilty shall be entered for this Count 31.
(h) Count 35 – assault Ms. S. s. 266
[85] I find that the Crown has proved beyond reasonable doubt that Mr. Thomas assaulted Ms. S.:
a. In June 2019 in the elevator at Ms. S.’ apartment when Mr. Thomas slapped her and hit her with the gun and left her with a black eye; and b. On or about October 19, 2019 at the Ramada Inn when he slapped Ms. Thomas and hit her with his gun.
[86] On both such occasions, the blows described by Ms. S. were inflicted by Mr. Thomas intentionally, without her consent and in circumstances where Mr. Thomas was aware of the lack of consent of Ms. S..
(i) Count 36 – point firearm at Ms. M. s. 87(1)
[87] I find that the Crown has proved all of the essential elements of this offence beyond a reasonable doubt.
[88] Mr. Thomas left the bedroom area of the Ramada Inn suite where he had confronted Ms. M. and Ms. S. moments earlier, asking both of them if they thought he was a joke. During this initial phase of the incident, Mr. Thomas had pulled out his gun and pointed it at both women. Ms. S. had to take a video call with a client and Ms. M. and Mr. Thomas both left the bedroom area. Ms. M. sat on the couch and was absorbed for a time in checking her phone. She assumed – incorrectly – that Mr. Thomas had left. He had not. He had gone to the washroom which was just off the living room area of the suite. While she was on the couch, Mr. Thomas emerged from the bathroom with a gun in his hand and his pants off or down. He pointed the gun at her and demanded that she fellate him. When Ms. M. began to cry and say “no”, Mr. Thomas pointed the gun at her again and ordered her to comply within two seconds. She did as he demanded.
[89] A verdict of Guilty on this Count 36 shall be entered.
(j) Count 38 – possess restricted firearm without license s. 91(1)
[90] The Crown has withdrawn this charge.
(k) Count 39 – possess firearm when prohibited s. 117.01(1)
[91] Exhibit 32 contains the admission that Mr. Thomas was subject to multiple firearms prohibition orders pursuant to s. 109 of the Criminal Code during the period of time specified in the indictment. I have found that the Crown has proved beyond reasonable doubt that Mr. Thomas possessed a loaded handgun and used it to commit various of the offences charged and for which I have found him guilty beyond reasonable doubt arising from the incident in or about October 19, 2019 at the Ramada Inn in Niagara Falls, Ontario. The Crown has proved all of the essential elements of this offence beyond a reasonable doubt in respect of this incident.
[92] A verdict of guilty for this Count 39 shall be entered.
(l) Count 40 – sexual assault with a weapon on Ms. M. s. 272(1)(a)
[93] I find that Mr. Thomas sexually assaulted Ms. M. on multiple occasions during the course of the incident at the Ramada Inn hotel in Niagara Falls on or about October 19, 2019. In each case, he intentionally applied force to Ms. M. in circumstances of a sexual nature knowing that she did not consent and in each case her compliance with his demands was secured by means of the gun that he possessed, pointed at Ms. M. and threatened to shoot her with on more than one occasion. When the gun was not in his physical possession it was nearby and ready to hand.
[94] The circumstances of the first sexual assault upon Ms. M. are outlined above in connection with Count 36. Mr. Thomas pointed his gun at her and threatened to shoot her with it if she did not comply with his demand that she fellate him. She complied due to the threat and not voluntarily. Mr. Thomas was aware of her non-consent.
[95] After receiving oral sex for a period of time, Mr. Thomas ordered Ms. M. to take off her pants. He bent her over the couch and proceeded to penetrate her vagina from the back. She did not consent to this either and voiced this to him. He was aware that her compliance with his order was the result of his threatened violence and not her consent.
[96] After a further period of time, Mr. Thomas stopped thrusting and withdrew his penis to check whether Ms. S. had finished her video call in the adjacent bedroom. While he was briefly absent, Ms. M. pulled her pants back up. Mr. Thomas returned and ordered her to pull her pants back down and resumed his activity as before, again without her consent and again knowing of her lack of consent. He told her to stop crying during this.
[97] Ms. S. finished her video call and opened the door connecting the bedroom area to the living room area of the suite. She saw Ms. M. bent over the couch with her pants down and Mr. Thomas with his pants down as well. She exclaimed “What the f***!” or words to similar effect and went back into the bedroom.
[98] There is a potential discrepancy between the description of this aspect of the incident as between the evidence of Ms. M. and Ms. S. which in my view is a distinction without a difference on a point that neither witness was asked to explain in any particular detail. Ms. M. said that Mr. Thomas was still inside her when the door opened; Ms. S. said that they were apart when she entered but she also did not remember seeing his penis. Clearly Mr. Thomas stopped penetrating Ms. M. at some point because both witnesses state that he followed Ms. S. back to the bedroom next. Whether he stopped and pulled out as Ms. S. was entering the room and before she turned her eyes to that particular aspect of the scene before her or a moment later is utterly immaterial and neither witness was presented with the evidence of the other during cross-examination or asked to explain the difference if any. I see no material inconsistency in the two accounts as given by Ms. M. and Ms. S.
[99] I describe the balance of this incident in Count 41 in relation to the sexual assault upon Ms. S. by Mr. Thomas. Mr. Thomas required Ms. S. to perform cunnilingus upon Ms. M. while Mr. Thomas penetrated her vagina with his penis from behind. He then reversed roles, requiring Ms. M. to perform cunnilingus upon Ms. S. while Mr. Thomas penetrated Ms. M. from the rear. At some point during this ordeal, he required the two women to “scissor” by rubbing their vaginas against each other.
[100] The degrading acts Mr. Thomas required each of Ms. M. and Ms. S. to perform upon each other, the fact that each were known by him to be not only close friends but first cousins are aggravating circumstances of each of these sexual assaults in addition to the use of a firearm in the commission of both of them, the firearm having been used by Mr. Thomas to secure the obedience of both women.
[101] A verdict of guilty shall be entered for this Count 40.
(m) Count 41 – sexual assault on Ms. S. s. 272(1)(a)
[102] I find that Mr. Thomas sexually assaulted Ms. S. on or about October 19, 2019 at the Ramada Inn hotel in Niagara Falls, Ontario. Minutes after his initial sexual assaults upon Ms. M. in the same hotel room described in Count 40, Mr. Thomas entered the bedroom area of the suite to which Ms. S. had retreated after seeing Mr. Thomas and Ms. M. in the living room area of the suite. He hit her with the butt of his gun to the back of her head. He said words to the effect of “watch how sick I can be” and ordered Ms. M. to come into the room. He made Ms. S. perform cunnilingus upon her cousin Ms. M. while he himself penetrated her vagina from behind with his penis.
[103] Ms. S. did not consent to Mr. Thomas having sex with her on this occasion and Mr. Thomas was aware that she was not consenting and that her cooperation if any was being compelled by him by reason of the gun that he had in his possession (either on his person or nearby) and the force that he used in assaulting her. The forced cunnilingus given by Ms. S. to her cousin and received by her from her cousin were in both cases compelled by Mr. Thomas and that is an aggravating circumstance that I find proved beyond reasonable doubt.
[104] A verdict of guilty shall be entered on this Count 41.
(n) Count 42 – threaten death to Ms. M. s. 264.1(1)(a)
[105] I find that the Crown has proved this charge beyond a reasonable doubt. On or about October 19, 2019 Mr. Thomas pointed a firearm at Ms. M. and threatened to blow her brains out with the gun if she did not perform fellatio on him. He repeated the threat adding that he would do so in two seconds if she did not comply with his demand. In fear of her life, she complied.
[106] A guilty verdict shall be registered in respect of this Count 42.
(o) Count 43 – assault with weapon (scissors) on Ms. S. s. 267(a)
[107] I find that the Crown has proved that Mr. Thomas assaulted Ms. S. by pressing scissors at her nostrils. This incident occurred after the Ramada incident in October 2019 and before Ms. S. gave her initial police statement in early December 2019. Mr. Thomas showed up at her home one evening and began going through her phone and was angered by something. He pressed a pair of scissors up against the bridge of her nose between her nostrils.
[108] This was a clear instance of assault in that Mr. Thomas applied force intentionally to and without the consent of Ms. S. using a weapon – in this instance a pair of scissors.
[109] A guilty verdict shall be entered for this Count 43.
(p) Count 44 – assault Ms. S. s. 266
[110] I find that Mr. Thomas assaulted Ms. S. in early November 2019.
[111] Mr. Thomas showed up at her apartment early one morning in early November 2019. He told her at that time that he had been driving with Vanessa in a car when police did a traffic stop. There was a gun in the car. He ran away and managed to get some clothing from a homeless guy and somehow showed up at her apartment. She told him that she was glad that he was OK. He slapped her in the face and then went to take a shower. Later he told her that he had misunderstood what she said to him. This slap was clearly an incident of the intentional, non-consensual application of force by Mr. Thomas to Ms. S..
[112] A guilty verdict will be entered for Count 44.
(q) Count 45 – threaten death to L. (C) s. 264.1(a)
[113] I find that the Crown has proved this charge beyond a reasonable doubt. With a view to exercising control over Ms. S., Mr. Thomas threatened on more than one occasion to tie up her mother Ms. L. (C) and kill her. He made such threats to Ms. S. directly, reminding her that he knew where her mother lived and would tie her up and kill her. He also made them in voice and text messages communicated over WhatsApp including the following series of WhatsApp voice messages from November 26, 2019 (Exhibit 6) after he threatened to shoot Ms. S. and her mother and Ms. S. responded, “with what gun?” or words to similar effect:
a. 7:33 pm – “What do you mean what gun you dumb b****. The guns I get from my n****s…what is wrong with you...do you think, like I’m broke, I don’t have stuff, I can’t get my hands on stuff…”; b. 7:31pm – “I already told you I'd blow off your mother's head, I know where she lives so…”; c. 7:34 pm – “You don’t want your family or anybody else who I catch ….so like when I tie them up you’re going to have to get there before the police so’s …because you’re in a bit of …. it’s going to be your fault”. d. 7:35 pm – “Do you think anything stops me in the world from doing what I want to do”
[114] A guilty verdict will be entered on this count 45.
(r) Count 47 – transport for purpose of exploiting Ms. S. s. 279.01(1)
[115] I find that the Crown has proved beyond a reasonable doubt that Mr. Thomas recruited, transported, transferred, received, held, concealed or harboured Ms. S. during the stipulated offence period (August 1, 2019 through November 30, 2019) and that he did so intentionally and for the purpose of exploiting or facilitating the exploiting of Ms. S..
[116] I am satisfied that Mr. Thomas recruited Ms. S. when he offered to become her “financial advisor” in August or early September 2019, that he transported her to at least two “out calls” as an escort in Toronto and drove her to Niagara Falls on three occasions in October 2019 where she was harboured in hotels to carry on her escorting activities.
[117] I am also satisfied that Mr. Thomas did these things for the purpose of exploiting or facilitating the exploiting of Ms. S. Mr. Thomas’ communications with Ms. S. were replete with instances of blaming his outbursts of violence or death threats upon her failure to comply with his demands immediately, both before and after the offence period when Mr. Thomas proposed to act and then acted as what he described as her “financial advisor”. The conduct before the offence period forms part of the context in which Mr. Thomas’ actions during the offence period must be assessed as this conduct in effect “groomed” Ms. S. to be compliant with his demands during the offence period. Mr. Thomas repeatedly threatened to kill or harm Ms. S. and alternated these threats with episodes of exploiting her love for him and her desire to get closer to him. Having insinuated himself into her escorting business, Mr. Thomas took for his own use and benefit substantially all of her earnings within a brief period of time after she earned it and deceived her into believing that he was investing the money or otherwise saving it for her.
[118] A verdict of guilty on this Court 47 shall be entered.
(s) Count 48 – exercise control over Ms. S. for purpose s. 286.3
[119] I find that the Crown has also proved beyond a reasonable doubt that Mr. Thomas is guilty of the crime of procuring contrary to s. 286.3 of the Criminal Code.
[120] I am satisfied on the evidence that Mr. Thomas exercised control, direction or influence over the movements of Ms. S. for the purpose of facilitating the obtaining of the sexual services of Ms. S. for consideration.
[121] While it is not a requirement of this offence that Mr. Thomas should have exercised full or absolute control or dominion over the actions of Ms. Thomas in relation to the provision of sexual services for consideration, the evidence makes it very clear that he exercised a very considerable degree of influence or control over those activities. He was involved in approving advertising of her business, the photographs to be used and the rates she charged. He drove her to hotels to work out of town. He possessed the password to her phone and regularly made appointments on her behalf, including appointments that he knew were for services she objected to performing. He assaulted her on an occasion when Ms. S. balked at providing the service he had promised on her behalf. He often waited in the next room or nearby while services were being provided and came into the room soon after the client left to take possession of any proceeds. All of these actions were performed by him with the purpose of facilitating clients obtaining sexual services for money from Ms. S. and then appropriating to himself all or substantially all of the proceeds and he did just that.
[122] A verdict of guilty on this Count 48 shall be entered.
(t) Count 49 – receive financial benefit s. 279.02(1)
[123] This offence requires the Crown to prove (i) that Mr. Thomas received a financial or material benefit; (ii) on receiving such benefit, Mr. Thomas knew that it was obtained directly or indirectly from the commission of an offence under s. 279.01(1).
[124] The conduct prohibited by s. 279.01(1) in turn can be broken into two categories (i) recruiting, transporting, holding, concealing or harbouring a person or (ii) exercising control, direction or influence over the person in either case for the purpose of exploiting Ms. S. or facilitating her exploitation.
[125] The findings I have made in respect of Count 47 are applicable to the first of the two types of prohibited conduct under s. 279.01(1). The findings I have made in respect of Count 48 are applicable to the second type of prohibited conduct (control, direction or influence). I shall not repeat either set of finding here. In connection with control, direction or influence I would add the observation from R. v. Gallone, 2019 ONCA 663 at para. 50 that the exercise of control, direction or influence need not involve total dominion over the person. Rather, the prohibited conduct applies in a situation where “a person, by virtue of her or his relationship with the complainant, has some power – whether physical, psychological, moral or otherwise – over the complainant and his or her movement”. By August 2019, Mr. Thomas had acquired a very high degree of psychological control over Ms. S. and he used that control to cause her to agree to his inserting himself into her escorting business and allowing him to reap substantially all of the proceeds of it. For her, allowing him to play this role in her escorting business was a means of getting closer to Mr. Thomas; for Mr. Thomas it was a means of gaining influence over her actions to maximize her earnings and thereafter to appropriate all or most of them to his own benefit.
[126] This offence is complete when the accused engages in the prohibited conduct and where he receives a financial or material benefit knowing that it was obtained directly or indirectly from the prohibited conduct.
[127] I am satisfied that Mr. Thomas received substantially all of Ms. S. earnings over a period of approximately three months. He was aware that the funds arose from her escorting business and he was also aware that he had recruited and transported Ms. S. to carry on that business on terms where substantially all of the proceeds flowed into his hands, he was aware that he had intentionally deceived her into believing that he would use those funds for her benefit when he in fact used all or substantially all of them for his own benefit. He was aware that his control, direction or influence over her escorting business was being exercised by him in order to maximize the revenue from the business and thereafter to appropriate the proceeds to himself.
[128] The Crown has proved all of the essential elements of this offence beyond a reasonable doubt and a conviction must accordingly be entered for this Count 49.
(u) Count 50 – receive financial benefit from offence s. 286.2
[129] The charged offence under s. 286.2 of the Criminal Code requires proof by the Crown that (i) Ms. S. provided sexual services to her clients for consideration; and (ii) that Mr. Thomas received directly or indirectly a financial or material benefit knowing that it was derived directly or indirectly from the amounts paid by her clients as a result.
[130] The evidence clearly satisfies both of these essential elements. Ms. S. was earning between $200 and $600 per day most days of the week over the offence period with relatively few days off. That revenue arose from the escorting business where Ms. S. posted advertisements in a variety of on-line venues and received communications from clients via internet text services that she subscribed to by which she arranged to provide sexual services to those clients in agreed locations. She provided those services and received the agreed fee from the clients. Mr. Thomas would sometimes be in the next room or nearby. At all events he arranged to receive substantially all of the proceeds of these transactions shortly after she received them and retained the financial benefit so received.
[131] There is no serious case for the application of any of the exceptions mentioned in s. 286.2(4). Not only do none of the exceptions apply as written, but the “exceptions to the exceptions” in s. 286.2(5)(a), (b) and (d) preclude the application of s. 286.2(4) at all events.
[132] A conviction shall be entered for this Count 50.
(v) Count 51 – communicate when prohibited s. 145(5)(b)
[133] This charge and is treated as withdrawn.
Disposition
[134] I find the defendant Javar Thomas GUILTY of the offences as charged in Count 23, Count 25, Count 26, Count 27, Count 29, Count 30, Count 31, Count 35, Count 36, Count 39, Count 40, Count 41, Count 42, Count 43, Count 44, Count 45, Count 47, Count 48, Count 49 and Count 50.
[135] Mr. Thomas was arraigned on Count 51 but the Crown led no evidence and asked that it be treated as withdrawn. Count 38 was also withdrawn.
[136] A date shall now be set for the sentencing hearing.
S.F. Dunphy J. Released: March 21, 2023