OSHAWA COURT FILE NO.: CR-22-15808

DATE: 20231212

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King

– and –

Devon Finlay

Defendant

N. Trbojevic for the Crown

D. Barrison, for the Defendant

HEARD: October 16-20, 23, 24, 30, 2023

Reasons for judgment

LEIBOVICH J.

[1] Mr. Finlay was a friend of the C family. He is alleged to have committed 12 offences against RC, TC and RC’s friend DH. In essence, he is alleged to have procured the three boys, when they were under the age of 18, to have sexual activity with Craig Moffatt for money. Mr. Finlay is also alleged to have committed sexual offences with respect to RC and TC. The trial took place before myself sitting without a jury.

[2] The Crown relies on the testimony of the three complainants, texts found on Mr. Finlay’s phone and the testimony of Mr. Moffatt, who had pleaded guilty earlier to committing

sexual offences with RC and TC and obtaining sexual services from TC, RC and DH. The three complainants, RC, TC and DH each provided a videotaped statement to the police which was admitted, on consent, via s.715.1 of the Criminal Code R.S.C., 1985, c. C-46 and formed part of their evidence in chief. Mr. Finlay testified on his own behalf. There was no issue at trial that the complainants engaged in sexual activity with Mr. Moffatt for money. The issue was whether the Crown had proven beyond a reasonable doubt that Mr. Finlay procured the complainants to engage in the sexual activity and if Mr. Finlay committed the sexual offences with respect to RC and TC.

[3] Mr. Finlay testified that he did not engage in any sexual touching with the complainants and that he did not know at the time that Mr. Moffatt was engaged in sexual activity with the boys. He testified that he only sold drugs to Mr. Moffatt. He did not know about the sexual activity, he did not facilitate the sexual activity, he did not suggest the activity. He was not involved in it. The trial was completed on October 30^th and put over to today for judgment.

Trial evidence

Mr. Finlay’s connection with the C family and DH

[4] RC is TC’s older brother. RC and TC testified that Mr. Finlay knew their grandfather. He was a family friend. They called him Uncle Dev. He spent time at their home and was there for family birthdays. He lived with the family for several months.

[5] Mr. Finlay testified that he met the C family through the grandfather. Mr. Finlay had known the grandfather from when they worked at General Motors. He was a good friend. Mr. Finlay would visit the grandfather. The kids, including RC and TC would come say hello to their grandfather and then run off.

[6] RC testified that his family lost their house and they had to live at the Comfort Inn hotel. RC testified that his dad was on disability and his mother was on welfare. RC testified that he grew up broke and that Mr. Finlay knew about the family’s finances. RC testified that for approximately four years his family lived in shelters and hotels. They stayed at the Comfort Inn for three years. A year ago, they found a house.

[7] During cross-examination Mr. Finlay agreed that he stayed with the C family for four to five months and that he got to know RC well. He agreed that he stayed there as a friend protecting them from people throwing bricks. They were good to him and trusted and respected him. He respected them as well. The kids and their mother referred to him as Uncle Dev. It was a sign of trust and respect. He agreed that RC would refer to himself as Mr. Finlay’s nephew. At first ,Mr. Finlay agreed that RC was closer to him than the other boys but then said that he was not. Mr. Finlay testified that at the time of his arrest, his relationship with the boys was very good.

[8] Mr. Finlay testified that he took another C brother, JC, to Chucky Cheese for his birthday and paid for it. He disagreed that the C family had financial difficulty. He testified that the mother was able to throw a party for RC and give him alcohol so she could have done it for the other boys but chose not to. Mr. Finlay testified that he stepped up. Mr. Finlay testified in cross-examination that he would pick up food at McDonalds for RC and the rest of the family. He also testified that when he lived in Oshawa the boys would come over to his house starving and hungry. Mr. Finlay and his girlfriend would cook dinner for them. He cared for the family. He was asked again if the family had financial problems. He testified that it was kind of tricky, they received a baby bonus and a welfare cheque, but it was easier for Mr. Finlay to pay. He did not know what the mother did with the money except buy cigarettes. He testified that the kids were a paycheque for the mother.

[9] He testified that he drove the mother to Orfus Road in Toronto to buy clothes for the kids. He testified that the kids were stealing their mother’s bank card and agreed that the kids were financially desperate. He testified that he bought RC a pair of shoes. It was a gift. He was not owed any money.

[10] Mr. Finlay testified that RC was having problems in the neighbourhood and his mother wanted him out of the complex. Mr. Finlay was going back and forth to Toronto so Mr. Finlay agreed that RC could tag along. Mr. Finlay would take RC to the CN tower and to the parade.

[11] Mr. Finlay testified that RC had his own marijuana supply and that they would smoke together at the Comfort Inn. Mr. Finlay testified that he drank alcohol in front of RC but did not drink with him. He did not share a bottle of rum with him. Mr. Finlay testified that he would give RC a joint or two if RC did not have any. Mr. Finlay testified that he never saw RC use cocaine although RC did ask him for cocaine. Mr. Finlay testified that he never sold RC drugs and would gift him a small supply of marijuana.

[12] Mr. Finlay’s testified that RC’s mother could trust Mr. Finlay with RC’s safety and did not mind RC going with Mr. Finlay on his drug trips.

[13] DH stated that he was friends with a boy named MP. MP lived with Mr. Finlay. MP invited DH to his house and introduced him to Mr. Finlay. MP introduced DH to RC. Mr. Finlay testified that he met MP. MP was having difficulty with other kids. MP arrived at his house and stayed there and paid rent.

RC, DH and TC’s drug use

[14] RC testified at trial that he was using drugs and that his parents couldn’t handle him, so they kicked him out. RC testified that he took drugs any chance he could and that he snorted powdered cocaine and became violent. Cocaine was his main drug of choice. RC testified that he was living on and off with his family but that when he was 16 years old, he stopped living with them for a year. He testified that he would during this year stay with his girlfriend’s group of friends. He testified that it was always his goal to live on his own when he was 16. He wanted his own house and family. RC testified that when he returned to the Comfort Inn his family got kicked out. RC testified that he had been smoking marijuana since he was 11.

[15] DH testified that at the time of the events he was smoking a lot of marijuana. DH testified that at the time he was consuming over 10 bowls of weed a day. At that time of trial, he was down to four to five bowls a day.

[16] TC testified that he had been smoking marijuana since he was 13 years old.

RC and the Scarborough Bluffs incident [count 1: invitation to sexual touching; count 2: sexual interference; count 3: sexual assault; count 4: sexual exploitation]

[17] RC stated in his video statement that in the summer of 2014, when RC was 13 years old, Mr. Finlay took RC to the Scarborough Bluffs. While at the Bluffs, Mr. Finlay made a comment about RC’s penis saying, “oh, that’s not the size of you.” RC replied, “[y]eah, it is,” and Mr. Finlay asked to see RC’s penis. RC then pulled down his pants and showed Mr. Finlay his penis. Mr. Finlay offered RC $500 to allow him to suck his penis and RC reluctantly agreed. RC testified that it was very quick. RC said during cross-examination that he ejaculated. He had never mentioned this before at the preliminary inquiry or during his police statement. He explained that he was never asked. RC was reminded that he said at the preliminary inquiry that Mr. Finlay sucked his penis for two seconds. He testified that before Mr. Finlay sucked his penis, he gave him a hand job. He agreed that he never said this to the police or at the preliminary inquiry or in his evidence in-chief. RC testified that it stopped when he ejaculated. At the preliminary inquiry he said it was brief because they were in a parking lot. In re-examination RC clarified that the hand job took place after the sucking.

[18] After the Scarborough Bluffs, Mr. Finlay dropped RC off at home. RC testified that Mr. Finlay never gave him the cash but that he took him the next day to the mall to buy him stuff. Mr. Finlay bought him a couple of shoes, including a blue pair of Patrick Ewing shoes, and pants and marijuana. RC testified that Mr. Finlay had previously sold RC marijuana. This was the first time Mr. Finlay had bought him something.

[19] During cross-examination RC testified that at this time, Mr. Finlay was not living with his family. He testified that he told the police that the Bluffs incident happened in 2014 because he remembered a message he had on his phone about the trip and the message was dated in 2014. RC was born in 2003.

[20] RC tried providing a date with respect to the year that his interactions with Mr. Moffatt started and ended. However, it was evident that he was mixing up the years. He testified that the events with Mr. Moffatt started in 2021 and then ended in 2014. There was no dispute at trial that RC had a learning disability. He testified that he was the most confident in stating that the events started when he was 13 or 14.

[21] At the end of cross-examination, RC testified that another sexual act occurred with Mr. Finlay on another occasion. He had never mentioned that previously. In re-examination, he explained that he was not comfortable talking about it, so he did not mention it.

RC’s involvement with Mr. Moffatt [count 5; trafficking a person under the age of 18; count 6: procuring a person under the age of 18 to offer or provide sexual service; count 7: exercise control direction or influence for the purposes of facilitating an offence under s. 286.1(2)]

[22] Mr. Moffatt testified at trial that:

a) He paid RC for sexual services;

b) Mr. Finlay introduced him to RC;

c) Mr. Finlay knew he was having sex with RC;

d) 90 per cent of the time he arranged contact with RC through Mr. Finlay, as he had difficulty reaching RC on his own;

e) He never paid Mr. Finlay for having sex with RC. He bought his drugs from Mr. Finlay;

f) Mr. Finlay drove RC to his house but on occasion towards the end RC would arrange his own transportation and would sometimes show up unannounced.

[23] Mr. Moffatt was examined on his text messages with Mr. Finlay. Mr. Moffatt testified that:

1. On October 21, 2020, he texted with Mr. Finlay who was on his way to see Mr. Moffatt. Mr. Moffatt asked him what RC was doing because he wanted to have sex with RC.

2. On October 22, 2020, he texted Mr. Finlay and asked him what RC had decided because he wanted RC to come over and have sex with him.

3. On November 24, 2020, he texted Mr. Finlay about RC because he wanted RC to come over and to have sex.

4. On January 29, 2021, he texted Mr. Finlay and asked what’s RC saying because he wanted RC to come over and to have sex.

[24] Mr. Moffatt was shown a series of other texts where in essence he was asking Mr. Finlay where the loons or hood rats were. Mr. Moffatt testified that he was looking for the boys, RC, DH and TC to see if they wanted to have sex.

[25] RC stated in his video statement that approximately one week after the incident at the Scarborough Bluffs, Mr. Finlay took RC to Mr. Moffatt’s house at 9 Romana Drive, Scarborough. Mr. Finlay dropped RC off at Mr. Moffatt’s house and did not say why he was dropping him off there. During cross-examination he testified that he believed that he was going to Mr. Moffatt’s house so Mr. Finlay could get money not that he was there to perform sexual services. He testified during cross-examination that Mr. Finlay had previously told him and the entire family that he had taken a boy to someone’s house for sexual services. RC agreed that he never told this to the police. RC testified that he still went with Mr. Finlay because he did not know if it was true.

[26] RC stayed at Mr. Moffatt’s house overnight and Mr. Moffatt bought RC drugs and alcohol. That night, Mr. Moffatt and RC did “sexual stuff” which RC described as, “I was suckin’ his dick and like he was givin’ me a hand job and stuff like that.” They did not have anal sex. RC was high during this time and explained that he had “no feeling.” RC also explained that Mr. Moffatt asked him to shower with him, but RC refused. Mr. Moffatt paid RC $600 for the night. In the morning, RC took the Go Train home. During cross-examination RC agreed that at the preliminary inquiry he testified that he was given $200 by Mr. Moffatt but that he did not do anything sexual. RC agreed that this was a big difference.

[27] RC testified that this was the second time that he had used cocaine. He testified that he was addicted to cocaine because of Mr. Moffatt and Mr. Finlay, mostly because of Mr. Finlay. RC testified that the first time he had cocaine was with his older brother and Mr. Finlay had sold it to his older brother.

[28] RC stated that Mr. Moffatt never inquired as to RC’s age.

[29] RC explained that Mr. Finlay would talk to Mr. Moffatt to arrange for RC to go to Mr. Moffatt’s house. However, Mr. Moffatt had RC’s phone number and sometimes Mr. Moffatt would text RC directly. Mr. Finlay would drive RC to Mr. Moffatt’s house around 10 p.m., and RC would stay the night (12 or more hours) and then take the train back home.

[30] RC stated that Mr. Finlay would take RC to Mr. Moffatt’s house without telling him that is where they were going. Mr. Finlay would pick up RC and say they were going to get McDonald’s, or some other food and they would end up at Mr. Moffatt’s house. Mr. Finlay did not usually stay at Mr. Moffatt’s house after dropping him off. However, sometimes he would stay for a little while and cook crack for Mr. Moffatt and then he would leave. RC would usually take the train or an Uber home after being with Mr. Moffatt.

[31] In 2020 and 2021, RC saw Mr. Moffatt about every other day. Before that, RC would see Mr. Moffatt every other Wednesday. RC explained that the frequency of his visits increased because Mr. Moffatt sold his house and received CERB payments, so he had more money.

[32] RC stated that other boys also went to Mr. Moffatt’s house with him at times including DH and TC, but he was unsure whether any of them were involved in a relationship with Mr. Moffatt. RC testified at trial that he went with DH to Mr. Moffatt’s house more than once, but he was unsure how much more.

[33] RC stated that every time RC saw Mr. Moffatt, he would get money, weed, and coke. When asked how much money he would receive, RC said sometimes he would get $1,000 or $2,000. However, later in the statement, RC noted that sometimes Mr. Moffatt would not pay him. At trial, RC testified that in the early days each time he went to Mr. Moffatt’s house he would consume cocaine. Mr. Moffatt bought the cocaine from Mr. Finlay. DH also testified that RC would consume cocaine at Mr. Moffatt’s house.

[34] RC explained that sometimes, he would go to hotels with Mr. Moffatt. RC testified that there would be cocaine there as well. They went to the Park Inn in Markham and the Days Inn near Mr. Moffatt’s house in Scarborough. He was there a month or two before he provided his police statement in May 2021. RC also stated that on one occasion he went to a hotel with Mr. Moffatt, DH, and his other friend. When asked if anything happened on that night RC stated that Mr. Moffatt showered with DH and DH was paid $100. RC was unsure why Mr. Moffatt booked the hotel. RC’s friend had booked a hotel in Markham, but Mr. Moffatt booked the hotel in Scarborough, so the boys went there.

[35] DH in his police statement described waiting in Mr. Moffatt’s kitchen for RC while RC was in the bedroom with Mr. Moffatt. He said he saw Mr. Moffatt sucking RC and playing with him while he had his pants off, however, he did not see them having sex. DH stated that he knocked on the bedroom door telling RC that he wanted to leave.

[36] RC stated that Mr. Finlay advised RC of the prices that he should be charging Mr. Moffatt for sexual activity. Mr. Finlay told RC that he should charge $200 for a hand job, $400 for head, and $600 for overnight visits where Mr. Moffatt could do anything he wanted. RC stated that these prices stayed consistent over time. RC testified that Mr. Finlay discussed the prices with him when they were at the Scarborough Bluffs. During cross-examination, RC testified that the conversation about the prices happened when they arrived home after the Scarborough Bluffs. RC was confused why he was talking about prices. RC did not ask Mr. Finlay why he was telling him this. Later in cross-examination RC testified that Mr. Finlay clearly said that these were the prices he was to charge to Mr. Moffatt. RC agreed that he did not tell the police that the price list was discussed after Scarborough Bluffs. He said that he made a mistake when speaking with the police.

[37] RC subsequently told Mr. Finlay that he wanted to charge $100 per hour and Mr. Finlay got upset and did not want him to make that much. RC also said he was unsure why Mr. Finlay would be upset at him setting his own prices. Nonetheless, one day, RC and DH went to see Mr. Moffatt without Mr. Finlay. RC told Mr. Moffatt that he would be charging $100 per hour because a transgender woman he met at the hotel encouraged him to charge whatever he wanted. RC was sick of Mr. Finlay’s rules. RC testified that Mr. Finlay found out and he reverted to charging Mr. Finlay’s prices. During cross-examination RC agreed that at the preliminary inquiry he testified that he told Mr. Moffatt the first time that the sexual services would cost $100 an hour. RC said that he made a mistake. At the preliminary inquiry he testified that he charged $100 because a tranny had told him that price. He testified at trial that this conversation occurred, but it happened later on. He messed up at the preliminary inquiry.

[38] During cross-examination RC testified that Mr. Finlay was mad when he wanted to charge $100 and said that maybe Mr. Finlay should charge him for gas. RC testified that at first Mr. Finlay would drive him home but later he would take the train. Usually, Mr. Finlay would come bring him inside, cook some drugs and leave.

[39] When asked what Mr. Finlay said to him when RC told him that he did not want to do sexual acts with Mr. Moffatt, RC stated that Mr. Finlay replied, “you can stop soon, as long as you get a new boy and stuff.”

[40] RC also stated that Mr. Moffatt gave Mr. Finlay money. He said he thought Mr. Finlay received $600 or $700 from Mr. Moffatt, but Mr. Finlay never told him if he was getting money from bringing him to Mr. Moffatt’s house.

[41] RC testified that he realized all his money started going towards cocaine and he realized he had a problem. He bought cocaine from Mr. Finlay, and Mr. Moffatt would buy cocaine from Mr. Finlay and give it to RC. RC testified that from the age of 13 until March 2021 he was using cocaine. He has been doing well since then and has only been using weed. He did have a relapse and was using crystal meth, but he is feeling better now.

[42] RC testified that he also sold drugs with Mr. Finlay, to his clients. He made money from selling drugs and from Mr. Moffatt. He made the most money from Mr. Moffatt and that the most he made at a time was a $1,000. RC agreed in cross-examination that he was not just selling cocaine for Mr. Finlay, and he agreed that he profited as well. He agreed during cross-examination that he wanted to move out when he was 16 and that the money, he made from his regular job was not enough to live on and that he made money from selling drugs and his sexual services.

[43] RC never told Mr. Moffatt that he did not want to do the sexual activity anymore. RC explained that his visits with Mr. Moffatt ended when RC was robbed of $900 and got beaten up by an individual named Goodzs in Mr. Moffatt’s driveway. This occurred a few weeks before RC gave his police statement on May 7, 2021. RC stated that the last time he spoke to Mr. Moffatt was March 26, 2021, and the last time he spoke to Mr. Finlay was April 14, 2021.

[44] RC did not want to tell anyone what happened, but his mother figured it out and he could no longer hide it. He explained that he did not want others to know that he was bisexual as he was afraid of getting picked on. Eventually he got sick and tired of it and decided to go to the police.

[45] RC testified that Mr. Moffatt called them hood rats. It was a negative term. It meant foolish.

[46] RC testified that he told his mother that he had a job stocking shelves. This lie was Mr. Finlay’s excuse for RC’s mother.

[47] RC disagreed with the suggestion in cross-examination that it was he who got DH and TC involved with Mr. Moffatt. RC disagreed that he made the decision on his own to sell sexual services. RC disagreed that he was just blaming Mr. Finlay because RC was beat up after the robbery.

DH’s involvement with Mr. Moffatt [count 12: procuring a person under the age of 18 to offer or provide sexual services]

[48] Mr. Moffatt testified at trial that:

a) He paid DH for sexual services;

b) Mr. Finlay drove DH and RC to his house. DH was a friend of RC;

c) Mr. Finlay knew he was having sex with DH;

d) On October 25, 2020, he texted Mr. Finlay about DH because he wanted DH to come over to have sex;

e) He never paid Mr. Finlay for having sex with DH. He bought his drugs from Mr. Finlay.

[49] DH testified that he went twice to Mr. Moffatt’s house with Mr. Finlay and MP. Mr. Finlay cooked crack on a spoon and gave it to Mr. Moffatt. The visits lasted 30 minutes. DH had a beef with MP, so MP stopped coming.

[50] Mr. Finlay took DH and RC to Mr. Moffatt’s house. Mr. Finlay left them there. RC went into Mr. Moffatt’s room and closed the door and stayed there for two hours. DH stayed in the kitchen. Nothing happened to him, and they left at 4:00 a.m. DH testified that the next time he went, Mr. Finlay said he could make money by doing something with Mr. Moffatt. In his video statement DH stated that Mr. Finlay said, “Craig’s into you and he would do stuff with you for money.” DH didn’t really know what he meant.

[51] DH testified that he had sexual experiences with Mr. Moffatt four times at his house. In his video statement DH said that he would fall asleep on Mr. Moffatt’s bed and wake up to Mr. Moffatt touching him down there. This happened four or five times. Mr. Finlay would sometimes be at Mr. Moffatt’s house in another room when this occurred. Mr. Moffatt also offered to shave DH “down there,” sleep with him, and shower with him. He described one incident where Mr. Moffatt pulled his own pants down and pulled down DH’s pants. Then Mr. Moffatt pointed to his private part and wanted DH to “hold it” and “play with it” and tried to bribe him to touch it. DH said that Mr. Moffatt would give him tons of weed.

[52] In cross-examination DH clarified that the first two times he went to Mr. Moffatt’s house nothing happened. On the third occasion, RC went into the bedroom with Mr. Moffatt. On the fourth occasion DH had sexual activity with Mr. Moffatt. The conversation about making money for sex happened the fourth time. It was not an explicit conversation or at least at the time he didn’t think it was. Now he realized it was. He realized when it was said that there was something wrong, that it was strange. However, at the preliminary inquiry DH testified that the conversation about sex and money came at the second visit and it was at the second visit that Mr. Moffatt asked him to shower with him. DH testified at trial that he remembers the sequence differently.

[53] DH stated that when Mr. Moffatt was done, he would want DH to sleep over, but DH always wanted to go home so he would make Mr. Finlay drive him home or Mr. Moffatt would pay for a cab.

[54] When asked if he ever received anything from Mr. Finlay or Mr. Moffatt, DH said that Mr. Finlay bought him a Puma tracksuit to bribe him. He also said that Mr. Finlay would drive DH and RC around, get them food and buy them clothes.

[55] DH stated that sometimes he and RC would take the train to Mr. Moffatt’s house without Mr. Finlay. DH estimated that they took the train twice. When asked why he would be going to Mr. Moffatt’s place without Mr. Finlay, DH said that RC suggested that they go.

[56] DH stated in his video statement that Mr. Finlay “sold [the boys] to Craig basically.” Mr. Finlay offered them to Mr. Moffatt for sexual services. When asked how much money he was given for doing the sexual activity, DH stated that he was paid $600, $700, or $800 (the amount differed each time) to do stuff with Mr. Moffatt.

[57] DH believed that Mr. Finlay was trying to sell them because Mr. Finlay would always say, “I’m goin’ to Craig’s, you guys are comin’.” Mr. Finlay would drive DH and RC there and leave them there half the time and the boys would have no way of getting back home. DH stated that Mr. Moffatt was giving Mr. Finlay a lot of money and would toss it to him in elastic bands. However, he did not know if the money was for the drugs or for the boys.

[58] Mr. Finlay did not give any consequences or ultimatums to DH regarding the sexual activity with Mr. Moffatt. When asked if there were any conversations with Mr. Finlay about what they were going to do or why he was taking them to Mr. Moffatt’s house, DH said that while they were driving to Mr. Moffatt’s house, Mr. Finlay said, “[t]his is the plan, you’re gonna ask him how much money he wants, score up with him, do what he wants you to do, like or do, or give him what he wants.” DH explained that Mr. Finlay would tell him what to say to Mr. Moffatt to make him pay and would provide situations and tell him how much money to charge. DH said that Mr. Finlay would say, “like it would be like, 200 for that, 200 for this.”

[59] When asked if Mr. Finlay would take some of the money DH made, DH said that the boys would owe Mr. Finlay $100 or $200 every time for gas money. Mr. Finlay would want the money to drive them there, even though DH had never asked to be driven there.

[60] DH stated that Mr. Finlay communicated with him through text messages, however, he no longer had Mr. Finlay’s phone number.

[61] DH testified that the last time he saw Mr. Moffatt was at the hotel. DH in his videotaped statement said that he went to a hotel in Scarborough close to Mr. Moffatt’s home with Mr. Moffatt, RC, and another boy about two months before his police statement. The hotel room was booked by Mr. Moffatt. While in the hotel room Mr. Moffatt called RC into the bathroom and they did stuff while DH was chilling on the bed. Then, RC and another boy left to go buy some chips from a gas station nearby. DH was high and while he was lying down, Mr. Moffatt came over, pulled down his pants and started playing with his penis. DH said that he did not make any money from this act. They were at the hotel from approximately 12:00 a.m. to 4:00 a.m. DH stated that they used the hotel room instead of Mr. Moffatt’s house because Mr. Moffatt’s house was a dirty trap house. RC asked him to come to the hotel.

[62] DH stated that Mr. Finlay would say, “oh, I wanna suck your dick” But Mr. Finlay only touched him once. Mr. Finlay touched his penis below the pants. DH was high when this occurred. In cross-examination he agreed that he testified at the preliminary inquiry that the touching occurred over the clothes. He also testified at the preliminary inquiry that it happened twice. He disagreed that it never happened. He does not know why he said that the touching was over the clothes.

[63] DH agreed in cross-examination that he had his own place to stay and that his mother supported and took care of him. He was not dependent on Mr. Finlay.

[64] DH testified that Mr. Finlay never threatened him or forced him or gave him money. DH testified that RC liked going to Mr. Moffatt’s house and asked to go there a lot. He once saw Mr. Moffatt give RC money. DH did not know RC was selling drugs or getting money for sex. DH didn’t like going to Mr. Moffatt’s house, but he went anyway. DH testified that RC was putting pressure on him to go and begged him to go. RC never gave him money to go. RC testified at trial that he did not beg DH to come with him to Mr. Moffatt’s house. DH was already involved. RC met DH through Mr. Finlay. He was never in a room alone with DH and Mr. Moffatt. He never spoke with DH about the stuff they did at the time. Recently they have spoken, and he has a general idea that something happened.

[65] DH disagreed with the suggestion that RC or his family offered him money to go to the police and said “not at all.” RC asked DH to go speak with the police. DH testified that his purpose in going to the police was to tell them about Mr. Moffatt. RC did not ask him to say anything about Mr. Finlay.

[66] DH testified that he had a falling out with RC. He believed RC was taking advantage of him and wanted DH to go to Mr. Moffatt’s house to perform sexual services.

[67] It was suggested in cross-examination that Mr. Finlay had nothing to do with DH’s attendances at Mr. Moffatt’s house. DH disagreed. He agreed that he continued to go to Mr. Moffatt’s house after December 2020 because RC wanted him to go and not because Mr. Finlay wanted him to go.

Counts respecting TC [count 8: sexual interference, count 9: sexual assault, count 10: procuring, count 11: exercise control, direction or influence for the purpose of facilitating an offence]

[68] TC testified about one incident that happened at Mr. Moffatt’s house.

[69] He testified that he went with Mr. Finlay and RC to Mr. Moffatt’s house. When they arrived, RC left to get money and then a pizza. Mr. Finlay and he smoked marijuana in the car. Mr. Finley brought the drugs. TC testified at trial that he had been using marijuana since he was 13. They then went inside Mr. Moffatt’s house. It was 1 or 2 a.m. At trial TC testified that he had received marijuana from Mr. Finlay prior to this event. At the preliminary inquiry he testified that he had not. At trial he testified that he gave a different answer because he was worried about being charged.

[70] TC fell asleep in the kitchen of Mr. Moffatt’s house. He was shaken awake by Mr. Finlay. When he woke up, only Mr. Moffatt, Mr. Finlay and himself were in Mr. Moffatt’s house. Mr. Finlay offered TC money to let Mr. Moffatt give him a hand job. Mr. Finlay and Mr. Moffatt also asked TC to allow Mr. Moffatt to “suck [TC’s] dick.” They offered to pay him for this as well but did not say how much. Initially, TC refused to allow Mr. Moffatt to perform any sexual acts. As the night went on, Mr. Finlay and TC were smoking and the men continued to talk about TC allowing Mr. Moffatt to do sex acts, and TC eventually agreed to let Mr. Moffatt give him a hand job to “get it over with.” TC said in his statement that he didn’t know how “but they fuckin manipulated me.”

[71] TC and Mr. Moffatt went to Mr. Moffatt’s bedroom and Mr. Moffatt shut the door behind them. TC was lying down on the bed and Mr. Moffatt was on the floor. Mr. Moffatt pulled down TC’s pants and took off some of his own clothes. TC explained that he was high on weed at the time and spaced out as it happened – he did not feel anything. While this was taking place, Mr. Finlay was in Mr. Moffatt’s kitchen cooking crack and RC was still out getting pizza.

[72] Mr. Moffatt tried to take pictures of TC, but TC would not allow him to. Afterwards TC tried to go back to sleep, but RC returned with pizza and TC and RC ate it. TC and RC wanted to return home to Oshawa, and Mr. Finlay told them to take the train, however it was around 3 or 4 a.m. The boys then asked Mr. Finlay to pay for a cab, but Mr. Finlay said he would drive them. Mr. Finlay took them home around 6 a.m. In cross-examination he agreed with his preliminary inquiry evidence that he was 14 when this took place.

[73] During cross-examination TC said that Mr. Finlay woke him up and asked, “are you looking for a fast and easy way to make money.” At the preliminary inquiry he could not remember the exact words that Mr. Finlay said. He testified that he was interested but he wasn’t willing to do anything. Mr. Finlay said that he should let Mr. Moffatt take him into the room and he would give him a couple of hundred dollars. TC said no at first and then after an hour he said yes. RC had still not returned. TC was mad that he was not there. TC did not have RC’s number. TC testified that he did not go outside to wait for RC. He did not know the area well. It was cold outside. He had not walked around the area. When RC returned the pizza was cold, but the lasagna was good.

[74] TC was paid in installments for the hand job. The night Mr. Moffatt gave TC the hand job, Mr. Moffatt paid TC $200. TC testified in cross-examination that Mr. Moffatt gave him the money approximately 10-15 minutes before he left. RC had returned but TC testified that he was unsure where RC was when Mr. Moffatt gave him the money. Sometime afterwards, Mr. Finlay paid him $350, and RC brought him another $200 from Mr. Moffatt’s house on another occasion.

[75] In total, TC received $750. At trial TC explained that Mr. Finlay gave him the money and told him that it was from Craig, but then TC gave it back to him in exchange for drugs. At trial TC said that Mr. Finlay gave him the money in his garage while at the preliminary inquiry he testified that Mr. Finlay gave him the money at the Comfort Inn. In addition, at the preliminary inquiry TC testified that Mr. Finlay said, when he gave him the money that it was from Mr. Finlay not Mr. Moffatt. TC said he made a mistake at the preliminary inquiry. At trial TC explained that when RC gave him the third share RC hinted that he was disappointed in him, and then RC went upstairs and slammed his door.

[76] When asked why Mr. Finlay gave him more money later, TC explained that Mr. Finlay gave him the money so that he would not tell anyone what happened. Mr. Finlay also said that if TC told anyone, Goodzs would be after him. TC explained that he was not afraid of Goodzs and felt safe at the time he gave his statement.

[77] TC stated that on other occasions Mr. Finlay and Mr. Moffatt tried to get TC to do more sexual acts for money. They said that he could make money and buy things, but TC refused. RC told TC not to go back to Mr. Moffatt’s house. The last time TC spoke to Mr. Finlay or Mr. Moffatt was in February 2021.

[78] At trial TC testified that he was at Mr. Moffat’s house on two other occasions, but nothing happened. He had forgotten about these visits when he spoke to the police. He recalled these occasions when he was shown call logs. Mr. Finlay was there on both occasions.

[79] TC explained that he went there to smoke up, listen to music and party. He was trying to get away from the hotel. He provided a statement about these two occasions the day before he testified at trial.

[80] He testified that in total he went to Mr. Moffatt’s place four times. The incident happened the third time he was there. However, in cross-examination it was clear that TC could not remember the sequence of the different visits.

[81] TC testified that Mr. Finley touched his butt over his clothes multiple times. TC said Mr. Finlay squeezed his ass over his clothes. TC gave him shit and yelled at him and told Mr. Finlay don’t be weird. In cross-examination, TC testified for the first that Mr. Finlay said at the time “you look cute” when he grabbed his butt. TC testified that the comment stood out in his mind. He also said that he thought that Mr. Finlay was goofing around. He testified that he did not think it was sexual but then testified that it was serious and inappropriate, but he brushed it off. He said that Mr. Finlay did this twice one day at Mr. Moffatt’s house and once on another occasion. TC agreed that when he initially spoke to the police and told them about Mr. Finlay touching his butt he did not remember that it happened at Mr. Moffatt’s house. At the preliminary inquiry he testified that Mr. Finlay only touched his butt once. He explained at trial that he was probably embarrassed to say anything more. At trial he testified during his in chief that it happened three times at Mr. Moffatt’s house. In cross-examination he said it happened only twice at Mr. Moffatt’s house and disagreed that he said earlier it was three times.

[82] TC testified that he received marijuana from others but not from RC. Initially RC did not want him smoking but he became more open to it as TC became older because RC had done the same thing. Mr. Moffatt’s house was a place that he could drink and smoke. He asked RC if he could go and RC said yes. TC rejected the suggestion in cross-examination that it was RC who was trying to get him to do something sexual with Mr. Moffatt. When asked he said no, “what the fuck”.

[83] TC testified in cross-examination that he thought when he gave his police statement that he was the only one. At the preliminary inquiry he testified that he knew that RC had given a statement.

[84] Mr. Finlay testified that he never introduced TC to Mr. Finlay. Once TC came with him to Mr. Moffatt’s place, but TC stayed in the car.

[85] DH also stated that TC went to Mr. Moffatt’s house and Mr. Moffatt tried to touch him. Mr. Finlay brought TC to Mr. Moffatt’s house and Mr. Moffatt wanted to do sexual things with him. Mr. Finlay would also ask TC how much money he would want in exchange for Mr. Moffatt doing sexual stuff to him. DH had a text message on his phone from Mr. Finlay saying that it was not a big deal for DH as he was 17 years old, but it could be a big deal for TC because he is 13 years old. DH’s mother took a picture of those messages from Mr. Finlay. DH was unsure of whether Mr. Moffatt did anything to TC. DH testified at trial that RC invited TC to Mr. Moffatt’s house and that the plan was for him to meet him there. RC took TC into the back room. DH didn’t know what happened there. Mr. Finlay sent a text that he didn’t want TC involved because he was 13 years old.

[86] RC testified that on one occasion he asked TC to meet him at the Go Station, but TC met him at Mr. Moffatt’s house. RC was at Mr. Moffatt’s house to perform sexual services. RC was drinking and smoking cocaine. TC met him outside. He invited TC into the residence. He is not sure if TC saw him perform any sexual acts. RC was cross-examined on the fact that at the preliminary inquiry he said TC did see him perform sexual acts. RC said that he was unsure. RC testified that he never drove to Mr. Moffatt’s house with TC.

[87] Mr. Moffatt testified that he had sexual activity with TC for money. He testified that Mr. Finlay brought TC to his house on the first occasion. He testified that RC was there on the first occasion. Mr. Moffatt testified that RC was trying to teach TC how to make the money. Mr. Moffatt testified that Mr. Finlay knew Mr. Moffatt was having sex with the boys. Mr. Moffatt testified that the references to loons in the text messages were inquiries by him asking where the boys, including TC, were because he wanted to have sex.

Craig Moffatt

[88] Mr. Moffatt testified that he was serving a sentence for 8 offences with respect to RC,TC, and DH. He was serving a sentence for the following:

a) Invitation to sexual touching and sexual interference with respect to RC;

b) Sexual interference with respect to TC;

c) Obtaining sexual services from someone under the age of 18 with respect to RC, TC and DH; and

d) Making child pornography with respect to RC and DH.

[89] Mr. Moffatt testified that he used to refer to the boys as loons or hood rats. Mr. Moffatt himself went by the nick name, “Fuck it.”

[90] Mr. Moffatt testified that he has known Mr. Finlay for 25 years and that ten years ago, Mr. Finlay lived with him for two to three months. Mr. Finlay testified that he knew Mr. Moffatt for 25 years and that he even lived with him from 2006-2010 in Mr. Moffatt’s basement. Mr. Finlay testified that he started hanging out with Mr. Moffatt in 2018 and 2019 and started selling him crack cocaine.

[91] Mr. Moffatt testified that Mr. Finlay introduced RC to him. He knew that DH was a friend of RC’s. He testified that Mr. Finlay brought DH and RC together to his house. He testified that Mr. Finlay brought TC to his house. Mr. Moffatt testified that RC was there when TC came the first time. Mr. Finlay brought them both.

[92] Mr. Moffatt used cocaine and crack cocaine. Mr. Finlay would supply him with drugs. He generally bought cocaine from Mr. Finlay. Mr. Moffatt testified that sometimes he owed Mr. Finlay money and Mr. Finlay had to chase him down. Mr. Moffatt testified that he believed that the boys were present when he conducted drug transaction with Mr. Finlay, for sure RC was present. RC and DH were present when he consumed cocaine. TC was not. Mr. Moffatt agreed in cross-examination that Mr. Finlay would cook cocaine in the house. DH and TC were there at different points when Mr. Finlay was cooking the cocaine.

[93] Mr. Moffatt testified that he never said that RC had a job stocking shelves. He said that RC was at his house 95% of the time while DH and TC were there two percent of the time. DH and TC were at his house way less. TC was there less than DH. DH was there less than ten times and TC was there less than five times.

[94] Mr. Moffatt testified that Mr. Finlay brought the boys to his house for the most part but near the tail end they would make it to his house on occasion by themselves. The boys on occasion would arrive unarranged. Mr. Finlay had a car. The boys did not. Mr. Moffatt testified that he would not give Mr. Finlay money to bring the boys over. Mr. Moffatt disagreed that Mr. Finlay would just drop the boys off and leave. Mr. Moffatt testified that most times Mr. Finlay would stay. Mr. Finlay was there when they were having sex. Mr. Finley knew he was having sex with the boys. Mr. Finlay would come over two to three times a week. A lot of the visits were for drugs. Mr. Moffatt only gave him money for drugs.

[95] Mr. Moffatt testified that most of the time he would arrange to meet with RC by contacting Mr. Finlay. Only 10 per cent of time did he contact RC directly. Mr. Moffatt testified that he could never reach RC. RC did not respond when Mr. Moffatt texted or called.

[96] Mr. Moffatt testified that he stopped talking to RC in 2021. He agreed that the 2017 date set out in his guilty plea was the correct date for when his offences started with RC, but it didn’t seem that long.

Testimony of Mr. Finlay

[97] Mr. Finlay testified. He is currently 60 years old. He is not employed and is on disability. He was robbed and stabbed 15 years ago and has a piece of knife stuck in his skull. He suffers from post-traumatic stress disorder, and he lives with his sister and mother at his mother’s house. He has a minor dated criminal record.

RC meets Mr. Moffatt

[98] Mr. Finlay testified that once he went and visited Mr. Moffatt. He told RC to wait in the car. He wanted RC to stay in the car because he did not want RC to see Mr. Finlay selling dope. But RC later came into the house to use the washroom. Mr. Finlay testified that he was cooking crack at the time and RC would have seen it. Mr. Finlay testified that maybe RC came inside Mr. Moffatt’s house three times. During cross-examination Mr. Finlay agreed that he was Mr. Moffatt’s crack dealer and that he smoked marijuana with him.

Knowledge of what Mr. Moffatt was doing

[99] Mr. Finlay testified that he was not aware of any relationship between Mr. Moffatt and the boys. He was blind to it. Mr. Finlay testified that he subsequently found out that the boys were taking the Go Train to see Mr. Moffatt without his knowledge.

[100] Mr. Finlay testified that he believed that RC had a job stocking shelves for Mr. Moffatt and he understood that they had exchanged phone numbers.

[101] Mr. Finlay asked Mr. Moffatt about the shelf stocking job and Mr. Moffatt asked Mr. Finlay if he could drive RC to his house. Mr. Finlay would drive RC in on Wednesday. Mr. Finlay testified “as there is a god in heaven” that he drove RC so that RC could work. During cross-examination Mr. Finlay agreed that Mr. Moffatt worked for the City of Toronto but said that he also had other side jobs.

[102] Mr. Finlay testified that in January or February 2021 Goodz called him and asked him why RC and a bunch of kids were at Mr. Moffatt’s house. Mr. Finlay asked RC. RC said that they went to Mr. Moffatt’s house to party. Mr. Finlay had no idea he had done this.

[103] Mr. Finlay testified he never asked the boys to do anything sexual with Mr. Moffatt. He testified that all the references to loons and hood rats in the texts were not a reference to getting the boys for sex but obtaining drugs for Mr. Moffatt. Mr. Finlay testified that Mr. Moffatt told him that RC was selling him drugs which Mr. Moffatt believed had come from Mr. Finlay.

[104] Mr. Finlay testified that the comments in the text “what’s RC saying” were a reference to Mr. Moffatt asking RC for drugs. Mr. Finlay testified that he did not understand why Mr. Moffatt wouldn’t just be asking him for drugs.

[105] Mr. Finlay agreed that he took RC, TC and DH to Mr. Moffatt’s house. He told the police that he had not. He testified at trial that he thought the police were asking if he took the boys there for sex. He was not deliberately lying.

Nothing sexual with the boys

[106] Mr. Finlay testified that he never had any sexual contact with RC, TC or DH or asked them to do anything sexual with him.

RC and Mr. Finlay’s drug business

[107] Mr. Finlay testified that he never asked RC to help him with his drug transactions. He never used RC’s assistance when Mr. Finlay did not want to go to Toronto.

The text messages

[108] Exhibit 1 and Exhibit 2 contain text messages between Mr. Moffatt and Mr. Finlay as well as texts between RC and Mr. Finlay. Mr. Finlay was cross-examined at length on the various text messages. Mr. Finlay agreed that Mr. Moffatt was called “Fuck it” in the texts and that he had “Fuck it” in his contacts. Mr. Finlay agreed that RC was called Ronald in the texts and DH was called Dy. Mr. Finlay agreed that “motive” seen in the texts means meeting up.

[109] On October 28, 2020, RC and Mr. Finlay texted about taking RC at ten or 11. Mr. Finlay testified that he was taking RC to Mr. Moffatt’s house for his nighttime job of stocking shelves. He took him 3 or 4 times to do his job. Mr. Finlay then clarified that he took him 3 or 4 times a month because RC was supposed to work every Wednesday.

[110] Mr. Finlay testified that it took him a month to figure out that this stocking shelves job did not make sense.

[111] On November 10, 2020, Mr. Finlay and RC had the following exchange:

5:49 pm: DF to RC: WYS

6:52 pm: RC to DF: WYS

6:52 pm: RC to DF: Is Craig a motive?

7:11 pm: DF to RC: Imma call you back in about 10 minutes

7:12 pm: RC to DF: Say bet

8:03 pm: DF to RC: Come outside the front for a minute

[112] Mr. Finlay testified that RC was asking if he was going to work for Mr. Moffatt. Mr. Finlay then called Mr. Moffatt and asked him, Mr. Moffatt said yes, so they went. Mr. Finlay agreed to be his ride and he went and picked RC up and drove him to Mr. Moffatt’s house. Mr. Finlay testified that he was the go between for work. He did not know why Mr. Moffatt couldn’t reach RC.

[113] On December 3, 2020, RC texted Mr. Finlay and said that they could go to Mr. Moffatt’s after 5:00 p.m. Mr. Finlay texted that he was outside the back (of the Comfort Inn). Mr. Finlay said that this was about stocking the shelves. RC needed Mr. Finlay’s help for transportation. Mr. Finlay did not know that the job was fake. It took more than a couple of weeks to figure it out.

[114] Mr. Finlay testified that he learned about this job from RC and Mr. Moffatt around the same time, in a face-to-face conversation in the driveway.

[115] Mr. Finlay was cross-examined on one text exchange from October 25, 2020. Mr. Moffatt asked Mr. Finlay about DH and if he wanted to come. Mr. Finlay responded that he would ask him. Mr. Finlay explained that this conversation was about whether DH wanted to stock shelves. Mr. Finlay testified that he assumed or knew that DH was stocking shelves. Mr. Finlay testified that Mr. Moffatt needed him to be the go between. Mr. Finlay never told Mr. Moffatt to figure this out himself. Mr. Moffatt testified that he was asking about DH because he wanted DH to come over to have sex.

[116] On November 24, 2020, Mr. Moffatt texted Mr. Finlay and asked him what RC was doing, what was the plan, what was the kid doing. Mr. Finlay testified that this might have to do with bringing dope to Mr. Moffatt.

[117] On December 12, 2020, a series of texts were sent from Mr. Finlay’s phone to Mr. Moffatt. Mr. Finlay agreed in cross-examination that given the nature of the texts it made sense that RC had sent the texts from his phone. In the texts RC stated that it’s RC and he asked Mr. Moffatt to open his door as he is standing outside in a Santa suit for him. Mr. Finlay said that he never noticed those texts and agreed that they would be another reason to suspect that something sexual was going on.

[118] Mr. Finlay testified that he did not sell cocaine to RC. On December 26, 2020, RC asked him if he had any soft. Mr. Finlay agreed that soft meant cocaine. Mr. Finlay said no. He testified that even though he had cocaine, he didn’t want RC bothering him about it so he said that he did not have any. Mr. Finlay testified that he never saw RC using cocaine but he heard that he did and wasn’t surprised when RC asked him about cocaine. RC’s mother had told Mr. Finlay that RC was using cocaine.

[119] On January 24, 2021, Mr. Moffatt texted Mr. Finlay and asked him if he was coming to the city and asked him what was RC saying. Mr. Finlay agreed during cross-examination that at this time he did not believe the shelf stocking story. He thought that maybe something was going on. Mr. Finlay agreed that at this point he wanted to limit his dealings with Mr. Moffatt, that he didn’t want to bring RC to Mr. Moffatt’s house and that he suspected that Mr. Moffatt liked boys. Mr. Finlay was concerned about Mr. Moffatt’s intentions and assumed that something was going on.

[120] On February 11, 2021, Mr. Moffatt sent Mr. Finlay a text at 329 a.m., saying that the “loons” had left. Mr. Finlay asked Mr. Moffatt “how did he get home”. Mr. Finlay testified that Mr. Moffatt called everybody a loon, not just the boys. Mr. Finlay testified that the loon could be RC, he wasn’t quite sure. He then agreed that he left RC at Mr. Moffatt’s house and was wondering how he got home. He agreed that he must have dropped off RC earlier. He agreed that RC was obviously not stocking shelves. Mr. Finlay was asked in cross-examination why he would take RC to the city and leave him there. Mr. Finlay responded that he was trying to figure that out himself. He then said that RC got to the city on his own.

[121] Mr. Finlay testified that it was possible that RC was there when Mr. Finlay dropped off the drugs and possible that he didn’t bring RC there. Mr. Finlay testified that he knew then that shelves were not being stocked and he was suspicious that something sexual was going on. Mr. Finlay testified that by mid-February he knew that the relationship between Mr. Moffatt and RC was sexual.

[122] On February 21, 2021, Mr. Moffatt and Mr. Finlay had the following text exchange:

7:10 pm: CM to DF: What's RC saying?

8:32 pm: DF to CM: I don't know

10:23 pm: DF to CM the kid want me to drive them to your place

Him

10:31 pm: CM to DF Him

10:32 pm: CM to DF: huh

10:32 pm: DF to CM: Don't worry about it

RC said you keep calling him watching [wanting] to come

[123] Mr. Finlay was asked in cross-examination why he was still talking to Mr. Moffatt. Mr. Finlay said that he suspected but he wanted to hear it from the horse’s mouth. He denied that he agreed to be the go between for sexual services. He testified that even though he suspected, he never asked Mr. Moffatt if he was having sex with RC. Mr. Finlay testified that by the end of February 2021 he did not trust Mr. Moffatt.

[124] Mr. Finlay was then cross-examined on text exchanges with Mr. Moffatt from April 24, 2021. Mr. Moffatt asked where the hood rats were. Mr. Finlay said that he didn’t know, they don’t call because Goodsz is trying to kill him. Mr. Moffatt responded that Goodsz had went home and asked if there were any others around. Mr. Finlay responded that he was trying to find someone.

[125] Mr. Finlay agreed in cross-examination that he knew that there was an incident with the boys and Goodsz. Mr. Finlay testified that the reference to “any others around” was a reference to whether there were others who could deliver crack cocaine. Mr. Finlay agreed that he had just sold Mr. Moffatt cocaine earlier, but he did not know how much he used. He testified that the reference to the boys and Goodsz was in respond to an earlier question that Mr. Moffatt and asked. Mr. Finlay said that he was still willing to hang around with Mr. Moffatt and sell him drugs but not to do anything with the boys.

[126] The text exchange continued as follows:

1:55 pm: CM to DF: Any loons?

1:57 pm: DF to CM: I talk with RC but everyone’s afraid to come to your house and paying for cab for [Goodsz] to show up there I went to their shows up I think they wanna fucking get beat up.

2:02 pm: DF to CM: I’ll call RC’s phone to see if pick up or text him

2:25 pm: DF to CM: Can I call you later

[127] Mr. Moffatt testified that he was asking because he wanted them to come over to have sex. He said that the hood rats were mostly RC but also DH and TC. Mr. Finlay agreed initially in cross-examination that hood rats was a reference to RC, DH and TC. But then said that hood rats could be a reference to drug dealers.

[128] Mr. Moffatt testified that Mr. Finlay was the subject of a home invasion robbery and Mr. Finlay was injured. Goodsz was protective of Mr. Finlay and there was a fight between Goodsz and RC. Mr. Moffatt testified that no one wanted to come over to his house to have sex because they were worried about being beaten up by Goodsz. Mr. Moffatt testified that he wanted RC to come over and have sex.

[129] Mr. Finlay did not agree in cross-examination that loons was a reference to boys. He did not agree that his offer to call RC was in response to the question about loons. He was not trying to bring the boys over. He was trying to find out about why there was a fight with Goodsz. He was asked why he wasn’t staying clear of Mr. Moffatt. He responded that he wanted to find out about the fight with Goodsz.

[130] On April 27, 2021, Mr. Moffatt texted Mr. Finlay and asked if there were any hood rats or loons around. Mr. Finlay responded, “No I waited like two hours for RC didn’t call back didn’t text so Im on the way home.” Mr. Finlay testified that he might have been getting hold of RC to go to Mr. Moffatt’s, but he did not think it was about sex or anything.

[131] The text exchange continued with Mr. Finlay texting that he would check when he got home. Mr. Moffatt asked again if there were any loons around. Mr. Moffatt testified that he was looking for others besides RC, DH and TC to have sex with. Mr. Finlay texted that he was making some phone calls, and he was trying. Mr. Finlay testified that this was a reference that he was looking for adult drug dealers. Loons in this context meant adult drug dealers. He testified that he was trying to distance himself from Mr. Moffatt and trying to make sure the kids did not go there.

[132] On April 28, 2021, Mr. Moffatt texted Mr. Finlay and asked him if there any hood rats around, other than the “Oshawa nuts”. Mr. Finlay responded “no loon…” Mr. Moffatt testified that he was looking for other boys besides RC, DH and TC to come to his house to have sex. Mr. Finlay testified that the reference to Oshawa nuts could be a reference to RC and DH. Mr. Finlay testified that when he responded no loons it meant that he could not find any adult drug dealers for Mr. Moffatt.

[133] On May 8, 2021, Mr. Moffatt texted Mr. Finlay and asked him if there were any “NEW hoodrats around?”. Mr. Moffatt testified that this was a reference to finding other boys besides RC, DH and TC to have sex with. Mr. Finlay testified that this could have meant anybody. He said it was a reference to drug dealers.

[134] On May 22, 2021, Mr. Moffatt texted Mr. Finlay and asked him “where all the hood rat.” Mr. Finlay responded that they are all fighting with each other, and he didn’t know where they are. Mr. Moffatt responded, “any others”. Mr. Moffatt testified that this was a reference to mainly RC but also DH and TC. He wanted them to come to his house to have sex. Mr. Moffatt believed that at this time the boys were fighting with each other. Mr. Finlay testified that in this situation hood rats could have been a reference to boys coming over.

Law and analysis

[135] The burden is on the Crown to prove the accused’s guilt beyond a reasonable doubt. The accused comes before the court with the presumption of innocence. In other words, he has a clean slate. The presumption is only discharged when, and if, the Crown proves his guilt beyond a reasonable doubt with respect to each count. The Crown at all times bears the onus of proving the case. The accused does not have to prove anything. The Crown is required to prove the essential elements of each offence to the reasonable doubt standard. I must assess the case on the whole and decide whether, on the basis of all of the evidence, or lack thereof, the Crown has proven the guilt of the accused beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320.

[136] In this case in addition to being charged with committing hands-on sexual offences with TC and RC, Mr. Finlay is charged with human trafficking and procuring pursuant to s.279.011 and s. 286.1(2) of the Criminal Code. With respect to the human trafficking section, the Crown must establish beyond a reasonable doubt two elements to make out the offence of human trafficking. First, it must prove that the accused did anything that satisfies the conduct requirement set out in s. 279.01(1) in relation to a person. Second, it must prove that the accused intended to do anything that satisfies the conduct requirement, and that the accused acted with the purpose of exploiting or facilitating the exploitation of that person: R. v. Gallone, 2019 ONCA 663, at para. 17; R. v. A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377, at paras. 79, 82.

[137] The conduct that Mr. Finlay is alleged to have engaged in with respect to the human trafficking charge and the procuring charges is that he exercised “control, direction or influence.” The conduct requirement is made out if the accused engaged in any one of these types of conduct; Gallone at para. 32. In Gallone the Court of Appeal gave the following guidance at para. 47:

a) “exercises influence” over the movements of a person for the purposes of s. 279.01(1) is something less coercive than “exercises direction”;

b) exercising influence over a person’s movements means doing anything to affect the person’s movements; and

c) influence can be exerted while still allowing scope for the person’s free will to operate. This would include anything done to induce, alter, sway, or affect the will of the complainant.

[138] The Court of Appeal said:

Thus, if exercising control is like giving an order that the person has little choice but to obey, and exercising direction is like imposing a rule that the person should follow, then exercising influence is like proposing an idea and persuading the person to adopt it.

[139] The Court of Appeal in R. v. Ochrym, 2021 ONCA 48 stated that in “considering whether what an accused did amounted to exercising control, direction or influence over the movements of a complainant, regard must be had to the nature of the relationship between the accused and complainant.”

[140] And as stated in Gallone at para. 51:

exercises control, direction or influence” – evoke a scenario in which a person, by virtue of her or his relationship with the complainant, has some power – whether physical, psychological, moral or otherwise – over the complainant and his or her movements.

[141] The defence properly concedes that given the above jurisprudence if I, after a proper application of R. v. WD, [1991] 1 S.C.R. 742, accept the complainants’ evidence regarding how they came to provide Mr. Moffatt with sexual services in exchange for money, then the elements of the human trafficking and procuring offences would have been proven beyond a reasonable doubt having regard to the evidence of the complainants’ relationship with Mr. Finlay. As a result, these reasons will focus on my factual findings and the application of WD.

[142] In this case, Mr. Finlay has testified that he did not sexually assault any of the boys and he had nothing to do with their arrangement with Mr. Moffatt of trading sex for money. RC, TC and DH testified to the contrary as did Mr. Moffatt with respect to the procuring. My task is not to choose amongst these different versions to see which one I prefer. Rather, I must assess Mr. Finlay’s evidence, in the context of all the evidence, and if I believe Mr. Finlay, I must acquit. Even if I do not believe Mr. Finlay, in the context of all the evidence, but his testimony leaves me with a reasonable doubt, I must acquit. Even if I am not left in doubt by Mr. Finlay’s testimony, I must still consider on the basis of the evidence that I do accept, if I am satisfied beyond a reasonable doubt of Mr. Finlay’s guilt.

[143] If I cannot decide whether to believe the accused, or if I cannot decide who to believe, or I am unable to resolve conflicting evidence and am therefore left in a state of reasonable doubt, I must acquit. A criminal trial is not a credibility contest. At the end of the day, the Crown has the onus of proving its case beyond a reasonable doubt: W.(D.); R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 66, 67. As stated by the Supreme Court of Canada in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21, “[a] verdict of guilt must not be based on a choice between the accused's evidence and the Crown's evidence”, citing R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8.

[144] In assessing the evidence led at trial, I must consider the credibility and reliability of the witnesses’ evidence. Credibility and reliability are not the same thing, as stated by Watt J.A. in R. v. H.C, 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41:

Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately:

(i) observe;

(ii) recall; and

(iii) recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability, a credible witness may give unreliable evidence [citations omitted.]

Also see R. v. Ghadghoni, 2020 ONCA 24, at para. 34.

[145] In assessing a witness’s credibility and reliability, I must examine the consistency between what the witness said throughout his or her evidence, and what was said on other occasions, whether or not under oath: R. v. G.(M.), (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347, 73 O.A.C. 356 (Ont. C.A.), at para. 23, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390; R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536. It is important to consider not just the individual inconsistency but also the cumulative effect of any inconsistencies that I find and the nature of the inconsistency. Not all inconsistencies are the same, some are minor, others are not, some concern material issues, others peripheral subjects. As stated by the Court of Appeal in R. v. R.C., 2021 ONCA 419 at para. 37:

Inconsistencies about which an honest witness is unlikely to be mistaken can demonstrate a "carelessness about the truth" while inconsistencies about peripheral issues are of less significance: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354; see also R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 30-31.

Mr. Finlay’s testimony

[146] I have considered Mr. Finlay’s testimony in the context of all the evidence. I do not accept his evidence, nor does it raise a reasonable doubt. Mr. Finlay’s evidence constantly shifted as he struggled mightily to reconcile his testimony with the text exchanges between him and RC and between him and Mr. Moffatt.

[147] Mr. Finlay testified that he believed RC was working for Mr. Moffatt stocking shelves. The story is odd on its face given that Mr. Moffatt had regular full-time employment. The story grew odder that it was necessary, according to Mr. Finlay, for him to be the middle person arranging and coordinating this job. Mr. Finlay’s story continued to implode as he initially testified that he realized within a month of October 2020 that it made no sense that RC had this job, yet the texts showed that Mr. Finlay was continuing to take RC to Mr. Moffatt’s house. Mr. Finlay testified that with respect to a January 24, 2021, text that at this time he did not believe the shelf stocking story. He thought that maybe something was going on. Mr. Finlay agreed that at this point he wanted to limit his dealings with Mr. Moffatt, that he didn’t want to bring RC to Mr. Moffatt’s house and that he suspected that Mr. Moffatt liked boys. Yet he admitted in cross-examination (although he later changed his evidence) that he dropped RC at Mr. Moffatt’s house on February 11, 2021, and was discussing bringing RC to Mr. Moffatt’s house on February 21, 2021. I also note that at one point Mr. Moffatt was inquiring about DH. Mr. Finlay responded for the first time in cross-examination that DH was also working for Mr. Moffatt stocking shelves.

[148] Mr. Finlay’s testimony that the post February 2021 texts with Mr. Moffatt about loons and hood rats were discussions with Mr. Moffatt about finding other drug dealers was equally absurd given the context of the texts. There are other texts where Mr. Moffatt and Mr. Finlay were discussing different types of drug products. But the texts from Mr. Moffatt inquiring about loons or hood rats were not those. Mr. Finlay’s attempt to explain away these texts made no sense.

[149] In addition, Mr. Finlay testified that he was trying to keep RC away from his drug business and not involve him in his drug business. His testimony on this point was contradicted by numerous texts between him and RC where there were constant references to Mr. Finlay’s drug business. For example:

a) On December 22, 2020, he texted RC that he just got back chop. Mr. Finlay agreed that chop meant selling drugs;

b) On December 29, 2020, he texted RC that he was cooking what he has, which Mr. Finlay agreed was a reference to cooking drugs. He disagreed that he was involving RC in his drug business;

c) On January 3, 2021, Mr. Finlay told RC that Mr. Moffatt owed him $400 for a drug debt. Mr. Finlay disagreed that he was involving him in his drug business. He disagreed that he was asking RC to collect the drug debt.

[150] Mr. Finlay’s explanations for these texts and his attempt to reconcile the texts with his assertion that he was trying to keep RC away from drugs did not make any sense. In my view, Mr. Finlay was trying to paint himself in a more positive light. The falsity of Mr. Finlay’s assertion that he was trying to keep RC away from the drug business can also be seen in the following exchange with RC on December 29, 2020:

RC: I’m gonna try to at least make 7 even if I have to wait for sum tomorrow

Are you reing up tho

I'm trynna drop 500 on something

Try to get him to square up with u first

DF: You going to help me 2

[151] Mr. Finlay ultimately admitted in cross-examination that RC was trying to get Mr. Moffatt to square up with Mr. Finlay about a drug debt. Mr. Finlay still maintained that RC was not trying to participate in a drug transaction, but he was unable to offer an explanation to his text “ You going to help me 2.”

[152] During the course of his testimony, Mr. Finlay agreed that he bought a few things for RC as gifts and that RC didn’t owe him any money. However, on January 11, 2021, RC and Mr. Finlay had the following text exchange:

12:28 pm: RC to Mr. Finlay: U have soft Alie

12:35 pm: RC to Mr. Finlay: Is fuck it a motive

He owes me 400 and then I can re off u

On a b

12:35 pm: DF to RC: You still owe

12:36 pm: RC to DF: Yea

12:36 pm: DF to RC: And I have to wait for neatboy

[153] Mr. Finlay denied that RC owed him money for cocaine even though he had earlier in his testimony agreed that soft was a term for cocaine. He said RC owed him money for weed. He then said he was joking. Mr. Finlay said that he picked up weed from the reserve and that RC owed him money. It had nothing to do with cocaine. This is just another example of Mr. Finlay’s testimony being contradicted by the texts and another example of how his explanation for those contradictions makes no sense. I find that Mr. Finlay sold RC cocaine.

[154] In addition, Mr. Finlay testified that he took RC, TC and DH to Mr. Moffatt’s house. However, he told the police the opposite. I do not accept his explanation that he thought the police were asking if he took the boys there for sex. The officer’s question was quite clear.

[155] I simply find Mr. Finlay’s testimony to be too incredible and too unreliable to believe or to raise a reasonable doubt.

Has the Crown proven beyond a reasonable doubt the counts with respect to RC?

[156] It is the defence’s position that the testimony of the three complainants is too unreliable to support a conviction given the difficulties in their evidence. It is the Crown’s position that the three complainants each had challenges in giving their evidence but their evidence with respect to the human trafficking and procuring counts is corroborated by Mr. Moffatt and the text messages. The Crown submits that this corroboration should also give the court comfort with respect to the sexual offences.

[157] The defence submits that RC’s testimony is simply too unreliable to support a conviction for the following reasons:

a) RC’s description of the Scarborough Bluffs incident changed dramatically.

b) RC’s explanation that he anchored the timing of the Scarborough Bluffs incident because he recalled an email he sent does not make any sense;

c) RC’s testimony of the price list and when it took place was inconsistent with his prior statement and testimony;

d) RC exaggerated his drug use to put Mr. Finlay in a worse light;

e) DH said RC was encouraging him to attend Mr. Moffatt’s house;

f) RC, TC and DH all gave inconsistent accounts on how they were introduced into the sex trade and what they were told with respect to what monies they should receive; and

g) Mr. Moffatt said that RC brought TC to his house to teach him the ropes on making money.

[158] I agree with Defence counsel that there are concerns with the reliability of RC’s evidence, especially as it relates to the alleged sexual assault. However, I am satisfied beyond a reasonable doubt that RC’s testimony in conjunction with Mr. Moffatt’s testimony, which I do accept, and the text messages is sufficiently strong to ground a conviction for the human trafficking and procuring counts. While I find that the Scarborough Bluffs incident probably happened, given the defects in the evidence I am not satisfied beyond a reasonable doubt that it happened and Mr. Finlay will be acquitted of those counts. Let me explain.

[159] RC testified initially that the Scarborough Bluffs incident was brief and involved Mr. Finlay sucking his penis for two seconds. He testified at the preliminary inquiry that it ended quickly because they were in the parking lot. During cross-examination at trial RC testified for the first time that in addition, Mr. Finlay gave him a hand job and the incident ended when he ejaculated. He also said that there was another sexual incident with Mr. Finlay. RC testified that he was not asked these details. To a certain extent he is correct in that there is very little questioning by the police on this topic. I also agree that given his learning disability, limited education and given his history of drug abuse it was difficult for RC to convey what happened to the police and at trial. While it might be logical for an adult without these defects to have explained when asked about the hand job and ejaculation when asked at the preliminary inquiry how the incident ended, it might not have been so obvious to RC. I do find him to be a credible witness but, given the inconsistencies mentioned, I do have a reasonable doubt with respect to the Scarborough Bluffs incident. I simply am not sure.

[160] However, I am satisfied beyond a reasonable doubt that Mr. Finlay committed the offence of human trafficking and procured RC to provide sexual services to Mr. Moffatt for money. Mr. Finlay abused his position as family friend and as Uncle Dev to influence RC to engage in this conduct. I say so for the following reasons:

a. RC testified that Mr. Finlay told him how he could make money from Mr. Moffatt by selling his sexual services. Mr. Finlay provided him with a price list. I agree with defence counsel that RC was inconsistent regarding when this conversation took place. However, RC was not inconsistent with the fact that this did take place. It was clearly evident that RC had little ability to describe the events in their proper sequence. The timing of events would be difficult for any teenager to relay. It would be more difficult for any teenager who at the time was consuming cocaine as well as marijuana. It would be even more difficult for a teenager that had RC’s additional challenges. For example, RC was born in 2003. He said that the Scarborough Bluffs incident happened when he was 13 or 14 in 2014. Of course, in 2014, RC would have been 11. RC testified that the events started in 2021 and ended in 2014. Obviously, time does not go backwards;

b. RC was inconsistent with when he tried to change the price list and charge $100 an hour based on the advice he got from a transvestite at the hotel Again, I take nothing from RC’s inconsistencies with respect to the sequencing of events. I also do not find it usual given the reality of RC’s world that he would have had this conversation with a transvestite.

c. I do not accept defence’s submissions that RC was trying to exaggerate his cocaine and drug use to put Mr. Finlay in a bad light. RC testified that he used cocaine while at Mr. Moffatt’s. At first, he only went every two weeks but towards the end he went daily as Mr. Moffatt had more money. RC blamed Mr. Moffatt and Mr. Finlay for his drug addiction but he blamed mostly Mr. Finlay. The defence submits that how could he have been addicted to cocaine if initially RC was only visiting Mr. Moffatt every second week. I do not find this to be a compelling argument. Mr. Moffatt testified that he recalled that RC was at his house 95 percent of the time. RC also testified that he sold cocaine for Mr. Finlay. The text exchanges showed that he bought cocaine from Mr. Finlay and that he was asking Mr. Finlay for cocaine. Mr. Finlay, although he denied any responsibility, testified that he understood that RC had a problem with cocaine. While RC may be mistaken about exactly how his cocaine addiction unfolded there is no doubt that he had an addiction and there is no doubt that his Uncle Dev was a major reason for it.

d. I agree with defence counsel that each complainant’s testimony regarding how they were brought into the sex trade business was different. I do not see these differences to be of any significance given that each of their situation at the time was slightly different. The defence submits that only RC described a detailed price list. I agree. However, DH did state that Mr. Finlay told him what to charge and that it would be “200 for this” and “200 for that.” TC described no such list but TC only performed one act and refused to do it again. The fact that DH did not describe a more detailed price list like RC really is, in my view, of no significance in assessing the complainants’ evidence. It must be remembered that RC’s involvement with Mr. Moffatt significantly dwarfed the others which explain why he was provided such a detailed list or why he was able to recall it. DH testified that he was only involved in four incidents. This was supported by Mr. Moffatt’s evidence who said that RC was there 95 percent of the time while TC and DH were there only 2%.

e. To be clear in assessing RC’s testimony with respect to the human trafficking and procuring counts I have considered the inconsistencies with respect to the sexual offences counts as well as the other inconsistences referenced by defence counsel. However, with respect to the procuring and human trafficking counts RC’s testimony is supported by Mr. Moffatt and by the texts that were filed.

f. I accept Mr. Moffatt’s evidence. He testified in a candid frank manner without minimization or exaggeration. I found him to be a credible and reliable witness. Mr. Moffatt testified that Mr. Finlay introduced him to RC, that Mr. Finlay knew he was having sex with RC and that 90 per cent of the time he arranged contact with RC through Mr. Finlay, as he had difficulty reaching RC on his own. Mr. Moffatt also testified that Mr. Finlay drove RC to his house although on occasion towards the end RC would arrange his own transportation and would sometimes show up unannounced.

g. The texts messages from Mr. Moffatt to Mr. Finlay are replete with examples of Mr. Moffatt looking for RC specifically or any of the boys so, as Mr. Moffatt testified, he could have sex with them. There are a number of texts with Mr. Finlay texting Mr. Moffatt that he is trying to find out what the boys are doing.

h. I agree with the defence that there is no evidence that Mr. Finlay was paid to arrange for these sexual acts. That is not an element of any of the offences charged. However, the evidence is undisputed that Mr. Finlay had been friends with Mr. Moffatt for a quarter of a century and that Mr. Moffatt was a good drug client. Clearly, Mr. Finlay was much more concerned keeping Mr. Moffatt happy than taking care of RC and shielding RC despite Mr. Finlay’s close relationship with the C family.

i. Mr. Finlay proposed that RC perform the sexual services and persuaded RC to adopt the idea. He was Uncle Dev. He drank alcohol with RC. He smoked marijuana with him. He sold him cocaine. He bought him things, took him to McDonald’s, the CN tower and the Bluffs. He gave RC the price list. He was the main point of contact with Mr. Moffatt. He drove RC to Mr. Moffatt’s house repeatedly. He had a strong influence over RC’s actions.

j. In my view, defence’s suggestion that RC decided on his own to sell his sexual services to Mr. Moffatt is contrary to the evidence and implausible on this record as is defence’s suggestion that it was RC who initiated DH and TC into this world of sexual services for money.

Has the Crown proven beyond a reasonable doubt that Mr. Finlay procured DH?

[161] Defence counsel submits that DH’s testimony is not sufficiently strong to ground a conviction. Defence counsel submits that he was inconsistent in describing the sexual offence that he stated that Mr. Finlay committed on him. He also submits that DH’s testimony about what Mr. Finlay said to him regarding him providing sexual services was vague. Defence submitted that DH was holding back in his testimony, and one cannot speculate why he did so. The result for the court is that the witness was not being candid. The defence submits that DH also made up the story that Mr. Finlay offered him cocaine.

[162] Mr. Finlay is not charged with committing a sexual offence against DH. However, I agree that DH was inconsistent regarding his description of Mr. Finlay sexually touching him. He told the police it happened once under his pants. He testified at the preliminary inquiry that it happened twice on top of his clothes. At trial he testified that it happened once under his clothes. I do not think DH lied about this incident, but I do find that his evidence is not reliable on this point and his different answers at the preliminary inquiry could be as a result of his significant consumption of marijuana. He told the police that he was high when it happened.

[163] But I agree that these inconsistencies must still be considered in assessing his evidence as a whole. However, in my view, I am satisfied beyond a reasonable doubt that Mr. Finlay procured DH to provide sexual services for Mr. Moffatt for the following reasons:

a. I disagree with defence counsel that DH was not forthcoming or forthright in his testimony. DH testified that after being to Mr. Moffatt’s house already, Mr. Finlay said he could earn money if he allowed Mr. Moffatt to do things to him. In his video statement DH stated that Mr. Finlay said, “Craig’s into you and he would do stuff with you for money.” DH didn’t really know what he meant. He reiterated in cross-examination that it was not an explicit conversation or at least at the time he didn’t think it was. Now he realized it was. He realized when it was said that there was something wrong, that it was strange. In my view, DH was being candid and not exaggerating his evidence. He knew something was wrong but at the same time he didn’t fully appreciate what was going on. I do not see anything unusual in DH’s description of the events given the circumstances, his age and the amount of marijuana he used to consume. DH also agreed that he gave a different chronology with respect to when this started. Again, the fact that DH had trouble placing the different visits to Mr. Moffatt’s house in the proper sequence is not surprising given his age and drug consumption;

b. I disagree with defence counsel that DH’s testimony regarding what happened the one time that Mr. Finlay gave him cocaine as being materially inconsistent;

c. DH disagreed with the suggestion in cross-examination that Mr. Finlay had nothing to do with his attendances at Mr. Moffatt’s house. However, he agreed that he continued to go to Mr. Moffatt’s house after December 2020 because RC wanted him to go and not because of Mr. Finlay. This evidence does not assist the defence and it does not shield Mr. Finlay from criminal liability. DH was crystal clear in his evidence that it was Mr. Finlay who initiated DH into this world. It was Mr. Finlay who told how he could make money, gave him the plan and suggested the prices. It was Mr. Finlay who told him that he was coming with him to Mr. Moffatt’s house. I accept DH’s evidence regarding how he came to provide the sexual services.

Defence points to the inconsistencies between RC and DH regarding whether RC pressured DH into continuing to go to Mr. Moffatt’s house as an inconsistency that affects the credibility and reliability of both of their evidence. I disagree. While DH and RC gave different evidence on this point, I would not describe their differences as an inconsistency as opposed to an honestly held different perspective on why DH continued to attend at Mr. Moffatt’s house. It is possible that RC was not encouraging but DH believed him to be and it is possible that RC was encouraging but he didn’t think he was. I simply do not know. But as stated, I have no doubt that it was Mr. Finlay who influenced DH to provide the services at the outset.

d. DH’s testimony is supported by the evidence of Mr. Moffatt and the text messages. Mr. Moffatt testified that he paid DH for sexual services. Mr. Finlay drove DH and RC to his house. DH was a friend of RC. Mr. Finlay knew he was having sex with DH. There is one specific text where Mr. Moffatt is asking Mr. Finlay about DH. Mr. Moffat testified that he was asking because he wanted to have sex with DH. In addition, there are numerous texts where Mr. Moffatt was seeking and asking Mr. Finlay where the loons were. Mr. Moffatt testified that the loons included DH.

[164] I am satisfied beyond a reasonable doubt that Mr. Finlay was not just facilitating the provision of sexual services, he was influencing DH to do so. Mr. Finlay proposed the idea and persuaded DH to adopt it. Given his relationship with DH, Mr. Finlay had a strong influence over him. He would take DH to the beach, he bought him a puma suit (to bribe him as DH stated). He drove DH to Mr. Moffatt’s house until December 2020 and Mr. Finlay gave him the plan for dealing with Mr. Moffatt.

Has the Crown proven beyond a reasonable doubt the offences with respect to TC?

[165] The defence submits that TC’s evidence is not sufficiently strong enough to support a conviction for the sexual offences and the procuring count for the following reasons:

a) TC is inconsistent with respect to his allegation of sexual touching. He told the police that it happened once, he testified at the preliminary inquiry that it happened only once but at trial he said it happened three times. He also added for the first time in cross-examination that Mr. Finlay said he was cute as he grabbed his butt;

b) TC’s testimony regarding how he came to provide sexual services to Mr. Moffatt is odd especially his testimony regarding the length of time that RC was absent from Mr. Moffatt’s house. His testimony that he was trying to hide what happened from RC was inconsistent with the fact that Mr. Moffatt gave him some money when RC had returned to the house. The defence also submits that Mr. Moffatt and Mr. Finlay were taking quite a risk because they did not know when RC would be returning.

c) TC’s testimony at trial that RC was disappointed in him and slammed the door was made up, not supported by RC’s testimony and said for the first time at trial to make RC look better; and

d) TC tried to paint RC’s evidence as a protector which is inconsistent with what had happened.

[166] With respect to the sexual offences, I do not think TC is lying about his assertion that Mr. Finlay grabbed his butt and it probably did occur. However, the Crown is required to prove the offence beyond a reasonable doubt and I am simply unsure given the inconsistencies in his evidence on this point if Mr. Finlay grabbed his butt and, if he did, was it for a sexual purpose or was he just goofing around. TC was inconsistent regarding how often this happened. He also said initially during his in-chief that it happened three times at Mr. Moffatt’s house but then said during cross-examination that it happened twice and that he never said three times. I have some concerns with the reliability of TC’s evidence in this area. Put another way, I have a reasonable doubt regarding TC’s evidence on this point.

[167] With respect to the procuring counts, I have considered defence counsel’s submissions and I have considered the inconsistencies with respect to the alleged grabbing of TC’s butt. I am satisfied beyond a reasonable doubt that Mr. Finlay procured TC, for the following reasons;

a. TC’s testimony is supported by Mr. Moffatt’s evidence and the text messages. Mr. Moffatt said that he met TC when Mr. Finlay drove him to his house with RC. Mr. Moffatt testified that he had sexual activity with TC. Mr. Moffatt testified that Mr. Finlay knew about his sexual activity with the boys. Mr. Moffatt testified that TC was at his house less than five times which was consistent with TC’s testimony;

b. I find nothing bizarre about TC’s testimony regarding how Mr. Finlay and Mr. Moffatt pressured TC to engage in the sexual activity. I do not see anything riskier in this act then the other acts. It must not be forgotten that there is no dispute that Mr. Moffatt engaged in sexual activity with all three complainants. I do not find TC’s evidence that he was trying to hide what happened from RC inconsistent with TC’s evidence that Mr. Moffatt paid him while RC was there. Just because TC was concerned about hiding what happened does not mean that Mr. Moffatt was. I agree with defence counsel that based on TC’s evidence, RC was absent from the house for a very long time. Again, TC might be mistaken about the flow of time. This would hardly be unusual or concerning given TC’s age at the time.

c. I agree with defence counsel that TC was unable to consistently put his visits to Mr. Moffatt’s house in the same chronological order. This gives me no concern regarding his overall reliability with respect to the procuring charge. He was 14 years old at the time. He was also consuming marijuana. It is not at all surprising that he was having difficulty with the sequencing of the events. Again, there is no dispute that TC attended Mr. Moffatt’s house. Mr. Moffatt’s testimony that TC was only present less than five times is consistent with TC’s evidence regarding how many times it attended.

d. There are slight variations in TC’s evidence regarding the circumstances in which Mr. Finlay gave him the second portion of the money and when RC gave him the third portion of the monies owing. I do not think these differences are material. Defence counsel’s primary argument is that TC’s evidence that RC looked disappointed and slammed the door and, on another occasion, told him not to go back to Mr. Moffatt’s house is a fabrication designed to make RC look like a protector. I disagree. I agree that it is true that on the evidence before me, RC did not protect or shield TC from Mr. Finlay and Mr. Moffatt. However, TC testified that he perceived that RC was disappointed in him. TC is certainly entitled to his perceptions and certainly entitled to believe that his brother was, in fact, a protector. Defence counsel submitted that it makes no sense that RC would have told him not to go back and that this must be a fabrication. I disagree. It is difficult to determine what is logical or illogical in the world that TC experienced. Just because RC did not shield TC from Mr. Moffatt the first time, does not mean that he would not have told TC to not return. I accept TC’s evidence. I do not find that he was lying to make his brother look better.

e. Defence counsel again noted that TC did not discuss a price list. However, TC only performed one act. While he was asked, he refused to do it again.

f. I am satisfied beyond a reasonable doubt that it was Mr. Finlay who proposed the idea and persuaded TC to adopt it. Uncle Dev was, as described earlier, a family friend. He drove TC to Mr. Moffatt’s house. He gave TC marijuana that night and he used his position of trust to wear down the 14-year-old, who initially refused, into finally agreeing to provide sexual services to Mr. Moffatt for money.

Conclusion

[168] Mr. Finlay, I find you not guilty of:

a. Count 1 (invitation to sexual touching)

b. Count 2 (sexual interference)

c. Count 3 (sexual assault)

d. Count 4 (sexual exploitation)

e. Count 8 (sexual interference)

f. Count 9 (sexual assault)

Mr. Finlay, I find you guilty of:

a. Count 5 (human trafficking)

b. Count 6 (procuring)

c. Count 7 (exercise control, direction or influence for the purpose of facilitating an offence)

d. Count 10 (procuring)

e. Count 11 (exercise control, direction or influence for the purpose of facilitating an offence)

f. Count 12 (procuring)

The Honourable Justice H. Leibovich