R. v. Cox, 2023 ONSC 5856

Court File and Parties

COURT FILE NO.: CR-22-113 DATE: 20231020

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING Gregory Hendry, for the Crown

- and -

JOHNATHAN COX & STEVEN COX Jora Kuner, for the Accused

HEARD: April 19-20, August 14-16, 2023

Reasons for Decision

Corrected Decision: Paragraph 103 of the original Reasons for Decision was corrected on January 4, 2024 to read Count 1: Procuring, under 18, s. 286.3(2)

BALTMAN J.

Introduction

1The complainant (“C”) met Johnathan Cox (“Johnathan”) at the high school they both attended. The two eventually began a relationship. C’s relationship with her family was strained and she moved into Johnathan’s residence in 2017, when she was 16 or 17 years old.

2C alleges that some time after she moved in, Johnathan encouraged her to work in the sex trade. For several months he obtained hotel rooms, posted advertisements, and took her earnings. Later on, his father, Steven Cox (“Steven”), also helped her work in the sex trade by driving her to hotels and renting rooms for her.

3C further alleges that on one occasion, while she was living in his house, Johnathan assaulted her by choking her.

4Johnathan and Steven deny all these allegations. They dispute knowing that C ever worked in the sex trade. Alternatively, if she did, they deny facilitating or profiting from it in any way. Johnathan further denies assaulting C in any fashion.

5Johnathan and Steven were charged with the following offences:

Count 1 : Procuring (Johnathan and Steven), person under 18 yrs., s.286.3(2) Count 2: Procuring (Johnathan and Steven), person over 18 yrs., s.286.3(1) Count 3: Human Trafficking (Johnathan), person under 18 yrs., s.279.011 Count 4: Advertising Sexual Services (Johnathan and Steven), s.286.4 Count 5: Financial Benefit from Sexual Services (Johnathan and Steven), s.286.2(1) Count 6 Aggravated Assault (Johnathan), s.268

6After receiving independent legal advice, Johnathan and Steven elected to be represented at trial by the same counsel, Mr. Kuner.

7After the evidence was concluded, the Crown invited the dismissal of Count #2 with respect to Johnathan. This is explained below.

Guiding Legal Principles

8Both Steven and Johnathan are presumed innocent of each and every charge against him in the indictment. That presumption remains with each of them the entire trial and is only displaced if I am satisfied that the Crown has proven the charges beyond a reasonable doubt. The Crown has the sole obligation of proving each charge against each accused. Neither Steven nor Johnathan is obliged to prove anything.

9Each accused is to be assessed separately and independently, based only on the evidence relevant and admissible against him personally. As the trier of fact, I am required to assess the credibility of witnesses and the reliability of their evidence. I am entitled to believe some, none, or all of the evidence of any witness who testifies: R. v. Chacon-Perez, 2022 ONCA 3, at paras. 84-87.

10Proof beyond a reasonable doubt is a very high legal standard. It must be a doubt based on reason and common sense, and is logically derived from the evidence or the absence of evidence. While likely or probable guilt is not enough, proof to a level of absolute certainty is not required as that standard is impossibly high. That said, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities: see R. v. Lifchus, [1997] 3 S.C.R. 320.

11Put simply, in order to convict either accused of an offence, I must be sure that he has committed the offence. If I am not sure, I must acquit.

Overview of the Evidence

The Uncertain Chronology in this Case

12I begin my review of the evidence with one caveat. All of the witnesses in this case, both Crown and Defence, were vague or uncertain about many of the relevant dates or time periods. Several of any such references below are an approximation, and even then differed amongst the various witnesses. That said, given the time that has passed since these incidents and the turbulence that surrounded them, I do not find that surprising. More importantly, in my view any discrepancies in the evidence as to the timing of certain events takes away little from the essential narrative of this case.

Evidence of the Complainant

13C was born on November 12, 2000. She is currently 22 years old. In 2016, when she was 15 years old, she became involved in an intimate relationship with Johnathan, who was 17 years old and attended the same high school.

14C’s relationship with her family was turbulent. Both her mother and her sister had worked in the sex trade. Her father had abandoned the family. Midway through 2017, she moved into Johnathan’s home. Some time after, Steven and Johnathan’s mother, Alex, helped her get a job as a hostess at Chuck’s Roadhouse. After a few months she stopped working there because she was not getting enough hours.

15Johnathan suggested she work in the sex trade. He wanted her to earn money and told her this would be a “fast and easy” way. Although he never “forced” her to enter the sex trade, at that point their relationship was “rocky” and Johnathan made it clear that a) he was tired of supporting her and b) if she didn’t enter the sex trade he would end the relationship.

16He helped her to take pictures of herself and post ads. He used her cellphone to take the pictures and to post the ads. He also set the prices for her sexual services, and purchased condoms and lubricant.

17C first worked out of the Marigold hotel. This was chosen because it is close to the Cox residence; if C encountered any issues, Johnathan could attend quickly to assist. Johnathan would rent the room, using a fake ID. He gave C the key and she communicated with purchasers to arrange meetings. C kept Johnathan apprised of when purchasers were arriving and leaving. Eventually she learned about “extras”, and discussed with Johnathan which of those she was comfortable doing.

18C had approximately six clients a day when she was working with Johnathan. The clients paid her in cash. She hid the money in the room, inside the Bible or a dresser drawer, until it reached around $500-$600. Johnathan would then attend and collect the money. Although Johnathan provided food and other items to C, he never gave her back any of the cash she collected. She knew she was earning more money than he was spending on her. C held back approximately 20% of her cash earnings from Johnathan, without telling him.

19C continued working for Johnathan in the sex trade for several months, always at hotels or motels. She would spend a few days working and then return to the Cox residence for several nights, particularly during her period. Her relationship with Johnathan steadily deteriorated. On one of the occasions where she was home for a “break” from the sex work, they got into an argument and she took the key to his safe and attempted to run out of the house. He chased her, grabbed her, and choked her until she passed out. When she revived she realized she had urinated on herself. Johnathan asked if she was okay and gave her a drink of water.

20While living with the Cox family and for some time thereafter she struggled with mental health issues. On several occasions, after particularly bad episodes, Steven took her to the hospital. Sometimes she would be released the same night; other times she stayed for several days.

21Around the fall of 2018, when C and Johnathan broke up and she moved out of the residence, C told Steven that she had been working in the sex trade at Johnathan’s behest. Steven seemed surprised and disappointed by that revelation. However, shortly after that, Steven began to help C and Johnathan book hotel rooms for her to see clients. It was easier for Steven because he was older and had a credit card, and therefore did not arouse any suspicion. Steven also allowed his credit card to be used to pay for C’s sex ads.

22Steven rented rooms for her at several hotels, including the Fairfield on Tomken, the Sandman in Mississauga, the Comfort Inn, and the Monte Carlo. He knew she was using the rooms for sex work. She denied the suggestion that Steven arranged rooms for her to recover after she had just got out of the hospital, or because she had nowhere else to stay.

23Sometime in late 2018 or early 2019, C was in a relationship with a man (Mario) who became troubled when he learned about her dealings with Steven. She then decided to end communications with Steven.

24She reported these allegations to the police in September 2020, following an incident outside Johnathan’s house. The incident began when she saw that Johnathan had hacked her Instagram account, saying she “sucked dick for cash”. Enraged, she stormed over to Johnathan’s house, screamed at the occupants from the outside and broke a window. Steven called the police. After they arrived, she was brought in for an interview, during which these allegations emerged.

Evidence of Johnathan

25Johnathan was born on December 10, 1998. He is now 24 years old. During the events in question he was living with his parents in their home.

26He testified that he met C in high school when he was 15-16 years old. They got into a relationship “sometime later” – he cannot recall when. She was having “issues” with her own family and therefore moved into his home. He does not remember when she moved in or how long she lived with him.

27C did not pay any rent while she was living at his home. He recalled her working at Chuck’s restaurant, but denied any knowledge of, or involvement in, C’s work in the sex trade. He did not help her post ads or book rooms for her to use. He testified that until the trial he did not know that C had left her job at Chuck’s.

28Johnathan confirmed that he did not work outside of the home and had no source of income. The first time he learned that C had ever worked in the sex trade was when he was arrested by the police on November 6, 2020. He acknowledged having a fake ID but could not remember any details about it. He denied ever going to hotels with C.

29He testified that his parents provided him money and purchased items he needed or wanted. This was in exchange for work he did on the roof and pool. He acknowledge the roof and pool work was still not completed by the time he was arrested in 2020.

30He broke up with C because she wasn’t making him happy anymore. The reason may have been “sexual.” As he put it, “I maybe got bored…she was the first girl I was with, I’d like to say I was attractive, I had other girls hit on me…”

31He denied ever choking C. He suggested that C was thinking of another incident between them when, according to him, she lunged at him with a knife.

Evidence of Steven

32Steven is Johnathan’s father. He testified that C moved into their residence in 2017. Before that she was living in a station wagon in their driveway. She had no family support and was missing school. After about a month, he spoke with his wife and they allowed C to move into the residence and stay in Jonathan’s room. They did not charge her rent.

33Steven confirmed that he helped C get a job at Chuck’s restaurant but she only worked there for a few months.

34He denied knowing anything about C’s involvement in the sex trade while she was living with him, although he acknowledged hearing rumours about it after she moved out. He never supported any of her efforts in the sex trade. On the contrary, he made numerous efforts to improve her life, including setting her up on social assistance and arranging her enrolment into a special school in Brampton for students with learning challenges.

35He never purchased sex supplies for her or hotel rooms for her to use in the sex trade. He confirmed that he did rent a motel room for her, under his name, for three nights in mid-October 2018 and for several nights in November and December of 2018. He explained that the rooms were rented for C after she was released from the hospital, having threatened to self-harm and with nowhere to go, or as a place for her and Mario to stay because they lacked privacy at the apartment they shared with his family. He also bought some personal hygiene products for her, including condoms and other toiletries. She told him the condoms were for when she was with Mario.

36Finally, Steven testified about a physical altercation between C and Johnathan in Johnathan’s bedroom, involving a knife. He and Alex (his wife) intervened, and C was asked to leave the residence.

Evidence of Alex

37Alex is Johnathan’s mother. She lives with him and her husband, Steven.

38Alex initially met C when C was 15. Later on C came to live with them because her own home life was very unstable. As Alex was then working full time, it was Steven who was most involved with C. He was very caring toward C.

39Alex confirmed that C worked at Chuck’s but eventually left that job. She agreed the purpose of that job was to give C financial stability and responsibility.

40C lived with them for approximately 1.5 years. C seemed happy in her relationship with Johnathan and was caring towards him. At one point, after he was stabbed during a fight, she spent three nights with him at the hospital, looking after him.

41Alex testified she had no idea that C was involved in the sex trade. She did recall an incident in late 2017 or early 2018 where C and Johnathan got into a physical fight (involving a knife) in his bedroom. She and Steven intervened to end the fight, and then she told C to move out.

42Alex confirmed that Steven kept in contact with C after she moved out.

43Alex recalled that C came to their house one day in September 2020 and yelled at them from the street. Johnathan told Alex that C was angry because he had changed the password on C’s social medial account.

Analysis and Findings

44I will begin my analysis with some overall credibility and reliability findings. This analysis is particularly critical in this case because it is clear from the parties’ submissions that they do not dispute the applicable law or the essential elements of the charges, but rather what the facts are in this case.

45In accordance with the approach set out by the Supreme Court of Canada in R. v. W.(D), [1991] 1 S.C.R. 742 (“W.D.”), if I believe the accused’s evidence, I must acquit. If I do not believe his evidence, but I am left in a reasonable doubt by it, I must acquit. Even if I completely reject his evidence, I must nonetheless look at the evidence which I do accept to determine whether the Crown has proven its case beyond a reasonable doubt.

46Again, each accused is to be assessed separately and independently, based only on the evidence relevant and admissible against him personally.

47After that analysis, I will turn to the specific counts in the indictment and determine whether the Crown has proven each count beyond a reasonable doubt. I must assess each count separately in determining whether the Crown has met its burden, as guilt on one count does not mean the Crown has proven an accused guilty on any other count.

A. Overall Credibility and Reliability Findings

1. The Complainant

48I find C’s testimony was credible, and, for the most part, reliable. The inconsistencies in her evidence were not significant and do not undermine her evidence. Undoubtedly she has led an unstable, even chaotic life over the last many years. That likely explains why, during her testimony, C repeatedly struggled to recall the dates and details of certain events.

49That said, her testimony was corroborated by other pieces of evidence:

• The Agreed Statement of Facts (ASF) confirms hotel rentals in October-December 2018, including significant periods of time: October 16-19 (4 days), November 14-18 (5 days), November 25-December 1 (7 days), December 19-29 (10 days)
• The ASF also confirms C’s involvement in the sex trade via sexual service advertisements (albeit in December 2018)

50Moreover, C’s evidence was devoid of exaggeration. She explicity disavowed any notion that she was “forced” into entering the sex trade by Johnathan. She made no attempt to overstate Steven’s involvement, asserting that he did not take any money from the sale of her sexual services (other than reimbursements for items he had purchased for her).

51She also did not minimize her involvement in the sex trade or the decisions she made while in it. For example, she acknowledged:

• Writing the ads and only seeking Johnathan’s input on the wording
• Taking some of the pictures for the ads; and
• Speaking with purchasers prior to providing sexual services

52In his closing submissions, defence counsel made much of C’s uncertainty surrounding dates and durations working in the sex trade. I have three responses. First, notwithstanding testifying over three separate days, there were no inconsistencies in the core aspects of C’s evidence. Second, difficulty recounting the details of these events is unsurprising, given C’s unstable lifestyle. Third, all three defence witnesses also had real difficulty reconstructing any reliable timelines. In fact, as I noted above, there was little consistency on dates from any of the witnesses.

53Finally, contrary to the defence theory in this case, there is nothing to support a motive to fabricate. During cross-examination defence counsel repeatedly suggested to C that she invented these allegations to retaliate against Johnathan for supposedy hacking her Instagram profile. There is no evidence here of any such motive. First, the police became involved at the instigation of the accused, not through C. Second, while the allegations arose after C came to believe that Johnathan hacked her social media account, that does not explain why she would make up such elaborate accusations against Johnathan. It certainly does not provide a motive to implicate Steven.

54I make this comment not to assert a proven absence of motive, but rather to highlight an absence of proved motive: R. v. Gerrard, 2022 SCC 13, at para. 4; R. v. Bartholomew, 2019 ONCA 377, at paras. 11-23. I bear in mind that the onus is on the Crown to prove the elements of the offence beyond a reasonable doubt, and there is no onus on an accused to prove anything, including a motive to lie: R. v. Nimchuck, [1976] O.J. No. 1258 (C.A.); R. v. A.W.M., [1993] O.J. No.901 (C.A.). The accused’s failure to persuade me that C had a motive to lie does not result in an adverse inference against one or both accused.

2. Johnathan

55Johnathan’s evidence was, on the whole, both unbelieavable and unreliable. He frequently gave answers that were vague or evasive. I therefore reject his evidence in its entirety except where it is corroborated by other evidence. The following are several examples of the many instances where he gave a dubious version of events, clearly trying to distance himself from what he knew and what he did:

a) Johnathan testified that it was not until he heard C testify at trial that he knew she no longer works at Chuck’s. That defies belief. It was never a secret that she stopped working there a few months after she moved into the Cox residence. Steven and Alex knew, and Johnathan was sharing a bedroom with C. Moreover, Steven and Alex’s evidence made it clear that the whole household was concerned about C earning an income. I find Johnathan invented this to deflect any suggestion that he was pushing C to earn income. b) Johnathan downplayed any suggestion that he needed or wanted the income from C’s sex work. However, he had no other legitimate form of income - not even a summer job or part-time employment. He testified that his parents would give him money for things he needed in exchange for renovations around the house, primarily the roof and the pool area. However, the evidence demonstrates that this work was minimal (transporting shingles up to the roof), and seemingly never ending; it was still not complete at the time of his arrest in 2020, and at this trial he stated he’s “not sure” if it’s done even now. He then suggested that physical labour is difficult for him because of back injuries he allegedly sustained in a car accident approximately 10 years ago. c) Johnathan could not provide any information about the fake IDs. C testified that when they first rented hotel rooms, it was her belief that Johnathan used his fake ID to rent the room. Johnathan acknowledged having a fake ID but was unable to provide any details about it, including its current location, the name on the ID, or whom he received it from. While C was unable to remember the name on her ID, Johnathan’s involvement with ID’s extended beyond mere possession – he actually acquired them.

3. Steven

56Steven was a difficult witness to assess, as he had a very conflicted role in C’s life. There is some reliable evidence that he made genuine attempts to help C, including getting her medical care and encouraging her to upgrade her education. However, I also find that, contrary to his evidence, he did know that C was working in the sex trade, and to some extent facilitated that work. In particular, according to C’s evidence, which I accept, he rented (in his name) various motel rooms for her to use with clients, including 7 days in October 2018 at the Comfort Inn and 26 days in November and December of 2018 at the Sandman Hotel.

57I reject Steven’s evidence that he solely rented those rooms for C after she was released from the hospital and made statements about self-harm and having nowhere to go, or because C and her new boyfriend Mario needed a private place to stay. Steven’s evidence does not account for the duration or frequency of the hotel rentals. Steven testified there were 2-3 separate occasions when he booked The Comfort Inn. While the record discloses three bookings, the bookings overlap with each other, e.g. C was at the Comfort Inn between Ooctber 13-19 (7 days). This is inconsistent with Steven’s evidence of taking C from the hospital on separate occasions. Similarly, with the Sandman hotel, Steven testified about booking a room so that C and Mario could get away, but the bookings disclose 26 days between November 14 and December 29, 2018. Finally, the ASF stipulates that police found sexual services ads relating to C posted on the megapersonals.com website in the latter part of December 2018.

4. Alex

58Alex was more of a peripheral witness in this case. While there were many similarities between her evidence and her husband’s, her evidence was also materially consistent with C’s evidence on several important points, including:

i) C was very invested in her relationship with Johnathan; ii) While C was living at the residence there were discussions about getting C to find work so that she could earn money and become a productive person; and iii) C and Steven maintained a close relationship even after C moved out.

B. The Sex Trade Charges (Counts 1-5)

Counts 1 & 2 – Procuring (Johnathan & Steven): ss. 286.3(1) and 286.3(2)

(i) Legal Framework

59Section 286.3(1) states:

Procuring

286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

[Emphasis added].

60Section 286.3(2) contains identical wording except it applies specifically to a person under 18 years, and contains a minimum sentence of 5 years imprisonment. It is undisputed that C began working in the sex trade before she reached 18.

61Although by its wording the actus reus can be made out in different ways, in this case, the Crown focuses on “recruits”, “harbours”, and “exercise influence” to establish liability.

62Courts have interpreted “recruits” to mean “to enlist or get someone involved” and “persuading or helping someone to do something”: R. v. D’Souza, 2016 ONSC 2749; R. v. Lucas-Johnson, 2018 ONSC 2370.

63The Ontario Court of Appeal has found that “harbour” means to provide shelter: R. v. Joseph, 2020 ONCA 733 (“Joseph”), at para. 74.

64Exercising influence over a person means doing anything to affect the person’s movements. Influence can be exerted while still allowing scope for the person’s free will to operate. It includes anything done to induce, alter, sway or affect the will of the person: R. v. Gallone, 2019 ONCA 663 (“Gallone”), at para. 47.

65When determining if an accused’s actions exercised influence over a complainant, the court should consider the actions in the context of the nature of the relationship between the accused and the complainant, and the impact of the accused’s conduct on the complainant’s state of mind: R. v. Ochrym, 2021 ONCA 48 (“Ochrym”), at paras. 29-30.

66As for the mens rea, the Crown must demonstrate that the accused’s actions were “for the purpose of facilitating an offence under s. 286.1(1) of the Code”, being the purchase of sexual services. In other words, the Crown must show that the accused specifically intended his actions would facilitate the purchase of sexual services: see Joseph, at para. 88.

(ii) Application to this case

67I shall first address Johnathan. Based on C’s evidence, I am satisfied that Johnathan recruited, harboured, and exercised influence over her.

68With respect to recruiting, Johnathan did the following:

a) He initiated the idea of C working in the sex trade; b) He told her it would be a fast and easy way to earn money; and c) He left the impression that if she did not enter the sex trade, their relationship would end.

69With respect to harbouring, Johnathan rented the hotel rooms where purchasers would attend and C would perform sexual services.

70Finally, Johnathan exercised influence over C by:

a) Persuading her to enter the sex trade in order to earn money; b) Helping her to create advertisements for her sexual services; c) Providing her transportation to hotels and motels; and d) Taking her earnings for himself.

71For those reasons, I easily find Johnathan guilty on Count 1.

72As for Count 2, C testified that following their break-up there was only one occurrence where Johnathan assisted her in the sex trade, and that was taking pictures of her at her request. On the evidence, it is apparent that C and Johnathan split up before her 18th birthday. On that basis, the Crown submits that Johnathan should be found not guilty of Count #2. The incident of taking the photo is dealt with under Count 4.

73Consequently, I find Johnathan not guilty on count 2.

74I turn now to Steven. The evidence establishes that Steven drove C to hotels and rented rooms for her both before and after she turned 18. The Crown alleges that in doing so, Steven was “harbouring”, contrary to the Code.

75As noted above, s. 286.3(1) makes it clear that harbouring is only an offence if it is done “for the purpose of facilitating an offence under subsection 286.1”, i.e. to facilitate the purchase of sex. In Joseph, at para. 88, our Court of Appeal noted a “purpose” requirement imposes a “high” “specific intent” mens rea. “More than knowing facilitating is required.” [citations deleted].

76In Ochrym, at para. 33, our Court of Appeal specifically found that driving a sex worker to a hotel or booking a room for her to use is not an offence:

Had Parliament intended s. 286.3(1) to criminalize any conduct affecting a complainant’s movements that facilitates the provision of sexual service for consideration, it would have done so more clearly. For example s. 286.4 provides that it is an offence to knowingly advertise an offer to provide sexual services for consideration. Parliament did not provide that driving a sex worker to a motel or booking the motel where the worker provides sexual services for consideration is an offence …

[emphasis added]

77Moreover, while I have found that Steven knew the hotel rooms he paid for were being used to sell sexual services, there is no evidence that was his specific intention. Rather, I find his goal was simply to provide a safe shelter for C. In this case, Steven appears to have been, at worst, a benign facilitator of C’s work in the sex trade.

78I therefore conclude Steven is not guilty on Counts 1 or 2.

Count 3 – Human Trafficking (Johnathan): s. 279.01

(i) Legal Framework

79The provision states:

Trafficking in persons

279.01(1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence

Exploitation

279.04(1) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

Factors

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

(a) used or threatened to use force or another form of coercion (b) used deception; or (c) abused a position of trust, power or authority.

[Emphasis added.]

80Again the actus reus can be made out in different ways. Here, as I noted under Count 1, the Crown’s focus, and much of the evidence in this case, centers on Johnathan recruiting, harbouring and exercising influence over C. Those terms are defined earlier in this decision at paras. 62-64.

81As for the mens rea, the Crown must demonstrate that Johnathan’s actions were for the purpose of exploiting or facilitating the exploitation of C; i.e., that his conduct could reasonably have been expected to cause C to believe that her own safety would be threatened if she failed to continue to offer sexual services. Importantly, it is not necessary that the accused’s conduct actually result in exploitation; i.e. the person’s safety need not actually be threatened: see Gallone, at para. 54; R. v. A.A., 2015 ONCA 558 (“A.A.”), at para. 70.

82Further, as the Court of Appeal for Ontario has repeatedly observed, in cases where exploitation, as defined in s. 279.04, arises from the facts, inferring that the accused’s purpose was to exploit the victim will usually be a relatively straightforward task: see A.A., at para. 87; Gallone, at para. 54; R. v. Sinclair, 2020 ONCA 61 (“Sinclair”), at para. 12.

83The term “safety” as it appears in s. 279.04 relates to protection from both physical and psychological harm: see A.A., at para. 71. In considering whether conduct would reasonably be expected to cause a complainant to fear for her safety, relevant factors are set out in Sinclair at para. 15:

• The presence or absence of violence or threats
• Coercion, including physical, emotional or psychological
• Deception
• Abuse of trust, power, or authority
• Vulnerability due to age or personal circumstances, such as social or economic disadvantage and victimization from other sources
• Isolation of the complainant
• The nature of the relationship between the accused and the complainant
• Directive behaviour
• Influence exercised over the nature and location of services provided
• Control over advertising of services
• Limitations on the complainant’s movement
• Control of finances
• Financial benefit to the accused, and
• Use of social media to assert control or monitor communications with others.

(ii) Application to this case

84I have already determined that Johnathan recruited, harboured, or exercised influence over C – see paras. 67-70 above.

85The following factors establish that Johnathan’s behaviour was exploitative:

a) Johnathan knew that C was vulnerable; she had moved out of her family residence and had minimal if any sources of income; b) C was young and had obvious mental health challenges; c) Johnathan took nearly all of C’s earnings from the sex trade; and d) C was left alone in hotels when providing sexual services and had no mode of transport other than Johnathan.

86I easily find Johnathan guilty on this count.

Count 4 – Advertising Sexual Services (Johnathan and Steven): s. 286.4

(i) Legal Framework

87The provision states:

Advertising Sexual Services

286.4 Everyone who knowingly advertises an offer to provide sexual services for consideration is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or (b) an offence punishable on summary conviction

88According to s. 164(8), an “advertisement of sexual services,” means “any material – including a photographic, film, video, audio or other recording, made by any means, a visual representation or any written material – that is used to advertise sexual services contrary to section 286.4.”

89The actus reus of this offence is made out if the accused advertised an offer to provide sexual services for consideration. The mens rea is made out if (i) the accused intended to advertise the offer, and (ii) the accused knew that the offer was one to provide sexual services for consideration: Gallone, at para. 78.

(ii) Application to this case

90Both accused are charged with this offence. I accept and rely upon the following evidence from C to support a conviction against Johnathan on this count:

a) Johnathan had input in the wording of the ad that was originally posted; b) Johnathan posted the original ad and reposted existing ads while C was working in the sex trade; c) Johnathan helped pay for the ads using bitcoin; and d) Jonathan took pictures of C knowing they would be used in the ads.

91As for Steven, it is a more nuanced matter. It is undisputed that Steven took no part in the composition or actual posting of the ads. His sole role was limited to paying for them; specifically, he knowingly allowed C to use his credit card to book the ads. The Crown asserts that because he knew she was using his credit card for that purpose, he is liable.

92On an instinctive level it might appear he should not be criminally liable. After all, he neither encouraged the ad nor participated in its creation, and did not profit from it in any way. However, I have already found that, contrary to his testimony, Steven did in fact know that C was working in the sex trade, and he knowingly allowed her to use his credit card to pay for her ads. In other words, he aided her in the act of advertising. It follows that he is liable as a party to the advertising offence, even if there is no exploitative relationship between them: see Gallone, paras. 77-98.

Count 5 – Financial Benefit from Sexual Services (Johnathan & Steven), s. 286.2(1)

(i) Legal Framework

93The provision states:

Material Benefit from Sexual Services

286.2 (1) Every person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

[Emphasis added]

94The offence is premised on a violation of s. 286.1(1), which prohibits the purchase of sexual services. This provision goes beyond that, with the additional element of criminializing those who profit from the sale of sex without any legal or moral claim to such benefits. It is aimed at pimps and the parasitic, exploitive conduct in which they engage by living off the earnings of a sex worker.

95The actus reus is the receipt of a financial benefit. The mens rea is knowing that it derives from the sale of sexual services.

(ii) Application to this case

96I shall first address Johnathan. As noted above, I accept C’s evidence that Johnathan periodically attended the hotel room she was working, and collected most of the cash she had earned, proving that he received a financial benefit. I have also found that he knew her earnings were generated from the sex trade, as it was he who set her up in the field. In sum, he exploited her by living off the avails of her sex work. Consequently, both the actus reus and the mens rea have been established.

97I turn now to Steven. As the Crown has conceded, in order to convict him under this provision, I must have found him guilty of procuring (specifically “harbouring”) under s. 286.3 (Counts 1 or 2). For the reasons set out in paras. 74-78 above, I have found Steven not guilty under s. 286.3, as I am not satisfied that by paying for hotel rooms he specifically intended to facilitate C’s participation in the sex trade. It therefore follows that he is not guilty on Count 5.

Count 6 – Aggravated Assault (Johnathan): s. 268

(i) Legal Framework

98The provision states:

Aggravated Assault

268 (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

99The actus reus (relevant to this case) is the application of intentional force that endangers the victim’s life. The mens rea of this offence is objective foresight of the risk of bodily harm.

(ii) Application to this case

100This count is based on C’s evidence about being choked to unconsciousness by Johnathan, an event he categorically denied.

101I accept C’s evidence about this incident. She described the event in some detail, including being “strangled” to the point where she blacked out and urinated on herself, and then receiving a drink of water from Johnathan. Those are significant sensory features that add credence to her account. C was also very specific in recounting this incident, noting that it was the “only time” Johnathan intentionally harmed her.

102All the witnesses testified about another dispute between C and Johnathan in Johnathan’s bedroom, wherein Alex and Steven intervened. They all had somewhat different versions of what occurred. While the defence attempted to make much of it in order to show that in fact C was the aggressor, to the extent it occurred at all it is clearly a different incident from the one giving rise to this charge, and thus a red herring.

Conclusion

103I arrive at the following verdicts in this case:

Count 1: Procuring, under 18, s. 286.3(2)

Johnathan: Guilty Steven: Not Guilty

Count 2: Procuring, over 18, s. 286.3(1)

Johnathan: Not Guilty Steven: Not Guilty

Count 3: Human Trafficking, s. 279.011

Johnathan: Guilty

Count 4: Advertising Sexual Services, s. 286.4

Johnathan: Guilty Steven: Guilty

Count 5: Financial Benefit from Sexual Services, s. 286.2(1)

Johnathan: Guilty Steven: Not Guilty

Count 6: Aggravated Assault, s. 268

Johnathan: Guilty

Baltman J.