Court File and Parties
Court File No.: CR-23-30000605-0000
Date: 2025-02-06
Court: Superior Court of Justice - Ontario
Style of Cause: His Majesty the King v. MB
Before: E.M. Morgan
Counsel:
- Ana Serban, for the Crown
- Maria Rosa Muia, for the Defendant
Heard: January 20 – February 1, 2025
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
Reasons for Decision
I. The Charges
1The Defendant, MB, was indicted on 19 counts under the Criminal Code of Canada, all in respect of the same set of incidents and relating to his relationship with the Complainant, AAP. Those counts have now been consolidated and revised.
2In her written and oral submissions, counsel for the Crown has summarized the counts as pursued at trial:
(1) human trafficking, exercise control for the purpose of exploiting, September 1, 2020 to March 1, 2021 – ss. 279.01(1), 279.04(1);
(2) receive material or financial benefit from commission of an offence (in Niagara Falls), February 28, 2021 to March 1, 2021 – s. 279.02(1);
(3) withhold or remove an identity document, September 1, 2020 to March 1, 2021 – s. 279.03(1);
(4) procuring a person to provide sexual services, September 1, 2020 to March 1, 2021 – s. 286.3(1);
(5) receive a material or financial benefit from commission of an offense (during the 50-50 split arrangement), September 1, 2020 to March 1, 2021 – s. 286.2(1);
(6) advertise sexual services, September 1, 2020 to March 1, 2021 – s. 286.4;
(7) utter threats, September 1, 2020 to March 1, 2021 – s. 264.1(1);
(8) kidnapping (Scarborough to Niagara Falls), February 28, 2021 to March 1, 2021 – s. 279(1)(a).
3There are four further counts which, while still alive at the commencement of trial, are no longer being pursued with any vigour by the Crown: weapons dangerous, use of an imitation firearm, kidnapping from September 1, 2020 to February 20, 2021, and robbery on February 28, 2021.
4The evidence to support these four charges was not forthcoming in the testimony of AAP. More specifically, AAP did not recall the events that gave rise to these charges until reminded of them in cross-examination by reference to her earlier police statements. Even then, she could not describe them in full.
II. The Complainant
5The evidentiary problems with respect to the four problematic counts identified by the Crown are the most severe. But all of the counts suffer in one degree or another from difficulties with the supporting evidence. For that reason, even setting out the basic narrative of what transpired in 2020-2021 to give rise to the charges against MB is not an easy task.
6I will first observe that the basic narrative of events at the trial comes from the testimony of AAP. She is an Indigenous woman who has for a number of years been engaged in the sex trade. She testified that she has been traumatized by her experiences, and it was self-evident in listening to her that this is true. Given her identity, her background, and her engagement in the sex industry, it is incumbent on me as trier of fact to be cognizant of, and to take all possible steps to avoid and to dispel, any “troubling stereotypical assumptions about Indigenous women who perform sex work”: R. v. Barton, 2019 SCC 33, para 201.
7This means that I must approach AAP’s testimony with an understanding that “there is no inviolable rule on how people who are victims of trauma like a sexual assault will behave”: R. v. D.D., 2000 SCC 43, para 65. I note in particular that any suggestion that AAP failed to fight back or to flee any predicament she found herself in or any confrontation with MB, is not to be taken as indicative of a lack credibility: R. v. Seaboyer, [1991] 2 S.C.R. 577, para 101. Different people confront adversity in different ways.
8Furthermore, what I might think of as logical, or a matter of common sense, is not a yardstick for sizing up AAP’s testimony or assessing her credibility: R. v. ARJD, 2017 ABCA 237, para 42, aff’d 2018 SCC 6. In particular, “[i]n assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case”: D.D., at para. 65. Thus, for example, the fact that AAP called 911 in one instance but not another must be evaluated in the context of her circumstances as a whole, and not from a pre-conceived point of view about the “right” or “expected” way that a person would respond.
9In addition, AAP stated in her testimony, and her temperament and demeanor as a witness made it clear, that she has some personal mental health challenges. Her mood swings and emotional responses on the witness stand were rather pronounced, and her mental fatigue toward the end of each afternoon was apparent to anyone in the courtroom.
10AAP explained that she has been diagnosed with bipolar disorder and that she takes medication that amplifies her weariness as the day goes on. In this respect, I am cognizant of the Supreme Court’s instruction that memory lapses and occasional emotional or ill-tempered responses are not to be taken as a lack of truthfulness by a witness with mental health challenges; rather, the focus is to be on her “veracity in view of [her] actual capacities as demonstrated by [her] ability to perceive, recall and recount the events in issue, in light of the totality of the evidence”: R. v. Slatter, 2000 SCC 36, para 2.
11Counsel for the Crown submits, and I would agree, that “[t]o properly assess the evidence in cases like this, a trauma-informed approach must be taken”: R. v. Musara, 2022 ONSC 2835, para 12. That is not to say that the frailties of memory or blatant contradictions in the evidence can be overlooked, but that tendencies of AAP to answer impatiently or even sarcastically, and to sometimes exaggerate her responses to questions, are not to be taken as automatically undermining credibility. As other colleagues on this Court have recognized, the key is to ensure that a complainant’s evidence is “given the weight it deserves” while remaining “ever-mindful of [the accused’s] presumption of innocence”: Ibid., at para. 12; R. v. Taylor, 2023 ONSC 1101, para 368.
12Having said that, it is incumbent on me as trier of fact to carefully scrutinize the allegations made by AAP against MB, regardless of her background or the nature of the offenses charged, since MB’s liberty is at stake: Musara, at para. 13. I have kept in mind that inconsistencies in detail and a penchant for saying “I don’t know” are not signs of evasiveness or falsification: R. v. E.H., 2022 ONCA 405, paras 44-45. But I cannot ignore the glaring gaps in the evidence that AAP delivered from the witness stand.
13AAP stated repeatedly that the events in issue were traumatic for her and that she has spent the last four years of her life trying to forget them. I do understand the trauma, and I understand her reaction to it. Blocking certain events from one’s memory can be therapeutic. As trier of fact, I feel compelled to say, without any irony and with great sympathy and respect, that she appears to have succeeded.
14I do not take her repeated answers of “I can’t remember” to undermine her credibility; I am convinced that she really can’t remember when she says so. But the prosecution depends on her evidence as the prime source of the entire narrative, and she, more frequently than not, simply cannot remember the events in issue.
15I also note that during one of her police interviews – a short one on March 31, 2021 when an officer showed her a photo lineup to try to identify MB – she related to the police an incident where she had lost her bank card but could not remember whether she had it back when MB and a female accompanying him took her backpack from her. She explained that she didn’t remember any details because she was intoxicated back then – “fucked up”, as she said.
16AAP was cross-examined on this at trial. She confirmed that she was drinking heavily in the past, but said that she could not recall whether she was still drinking when she first met MB. But then, a few minutes later in the cross-examination, she indicated that she was still drinking heavily right up to March 2021, and that her past drinking affects her memory of things that happened during the time period relevant here.
17Even adopting a trauma-informed approach to AAP’s evidence, it seems to me that it would be dangerous to convict based solely on the evidence of her spotty and often confused recollections. The analysis therefore calls for corroboratory or confirmatory evidence before relying on AAP’s version of events: Musara, at para. 31.
18In the record before me, some of that evidence is provided by two eye-witnesses to certain of the events. One of them is the front desk clerk at the Niagara Falls hotel where MB allegedly took AAP against her will and forced her to provide sexual services to clients. The other is AAP’s aunt who was present when MB allegedly dropped AAP off at her home after the Niagara Falls trip and AAP called 911. Some confirmatory evidence also comes from police investigators, who have combed through cell phone data, hotel registers, sexual services internet advertisements, and CCTV videos, all put forward in an effort to bolster AAP’s testimony.
19The question is: where, exactly, are the gaps in the narrative provided by AAP, and is the confirming and corroborating evidence enough to fill them?
III. The Testimony
20The basic narrative that AAP attempts to relay in her testimony is not complicated. She says that she met MB, who she only knew by a shortened version of his first name, on the internet dating site, Tinder. They apparently met at a hotel – possibly, but AAP was not entirely certain, the Knights Inn on Kingston Road. It is entirely unclear when this first introduction to MB occurred, but she testified that they met a couple of times and had a brief sexual relationship. Shortly thereafter she disclosed to him that she worked in the sex trade.
21The indictment, based on one of her statements to the police in March 2021, puts the first meeting in September 2020, while another of her police interviews dates AAP’s initial introduction to MB only a couple of months prior to her March 2021 interview. Neither of these dates square with what AAP stated at trial.
22If the initial meeting between MB and AAP was just a couple of months before her March 1, 2021 police statement, that would put their first encounter with MB just around New Years day. However, AAP also testified, with some confidence, that she spent several days during the Christmas week in December 2020 working out of the Days Inn in Mississauga, and that MB visited her there. At that point – i.e. prior to New Years – they were already well acquainted and were far beyond their first meeting; she testified that he gave her a Christmas gift of Nike shoes and some perfume.
23AAP also testified at trial that she remembered having first met MB around the time of her birthday in July 2020. She identified a photo from her personal Facebook page that she said showed MB dancing at a beach party on her birthday. She also testified that she had visited his home and met his mother and some cousins. When she again looked at the Facebook photo while on the witness stand, she seemed to change her mind and state that the picture was of MB’s cousin and not MB himself.
24The photo is not a clear enough face-front shot to properly identify whether or not it is MB. But whether the photo shows MB or his cousin at AAP’s birthday party, it seems to indicate that they first met before the winter of 2020-2021 and before even the September 2020 date when she told the police they first met. She has testified that she cannot recall how many times she had met MB prior to her birthday, but they obviously knew each other already in July 2020.
25In testifying, AAP readily conceded that her sense of time is off and that the timeline of her relationship with MB is confused. I understand that and I do not take her mistiming of events as reflecting a lack of credibility. Her confusion over the sequence and timing of things that occurred in 2020-2021 is a genuine confusion, and does not connote an attempt to hide or to falsify the facts.
26However, some mix-ups that AAP characterizes as “timeline” issues go beyond a confusion over timing. For example, AAP has described two separate incidents when MB supposedly threatened her and brandished a gun. Both times were in a hotel room, one possibly in the Monte Carlo Inn in Mississauga and the other possibly at the Mississauga Gate Inn or the Super 5 motel in Mississauga. AAP could not recall precisely where. She also could not recall when these events transpired; in one version they were early in their relationship when it was summer or fall and still warm outside, and in another version they were later in the winter and possibly just after Christmas, all depending on which time AAP narrated the events.
27But the feature of this narrative that stands out for attention is not the confusion over timing, sequence, or specific motel location. Each of those changed from pre-trial police statement to testimony-in-chief at trial to cross-examination at trial, but those are differences in detail that a trauma and context-sensitive analysis of her testimony can dismiss as insignificant. Rather, what is startling about AAP’s testimony is that each time she gave a statement or gave evidence, she related one of the two events and entirely forgot the other.
28In her pre-trial statement to the police, she told an entire story about how once MB kidnapped her in a hotel room by posing as a fake client, arranging to meet her, and then pointing a gun at her and threatening her if she did not agree to work for him. She indicated that she was traumatized by his having a gun, and was forever after afraid of him. And yet, in her testimony at trial, where she was asked to recount their entire 8-month (or so) relationship, this story was never told. She seemed to completely erase it from her narrative – that is, until she was specifically asked about it in cross-examination. Had Defense counsel not referenced it specifically, and pointed her to her police statement where she had spoken about it at length, it would never have been mentioned. She spoke as if the entire episode had never occurred.
29On the other hand, in her trial testimony, AAP related a story about MB brandishing a gun during an argument they had about sharing money she earned from clients. This episode was a new one that came out at trial; remarkably, it had never been told to the police, even though they had reviewed with her the entire history of her relationship with MB.
30AAP testified that at some point – possibly in the summer of 2020 or later in the fall of 2020 – they had agreed to a 50-50 split, in which MB assisted her in arranging for clients and managing a bitcoin account for payment in return for half of her earnings. She had difficulty pinpointing when, but they were in a hotel room and she says that he demanded 100% of her earnings. She related that she reacted emotionally, and that in a moment of rage she angrily threw $1,000 cash on the floor, at which point he pulled a gun out of his pocket and pointed it at her. She testified that she then left the room and did not contact him again.
31Much like what she told the police in respect of the fake date episode, AAP related that after this argument over money she was always afraid of MB because she knew he had a gun. Ironically, she had told the police when she related the fake date story that someone pointing a gun at you is “not the kind of thing you can forget.” And yet, she did forget it, twice – once pre-trial in respect of the money argument, and once at trial in respect of the fake date kidnapping.
32Ultimately, it is unclear when either of these events transpired, when they occurred, or, frankly if either or both ever occurred at all. No firearm has ever been found in MB’s possession, and other than these two mysterious and alternatively forgotten stories, there is no evidence of MB actually having a gun. On every other occasion that AAP said she feared MB, she indicated that she worried that he might have a weapon but she never saw one and he never used one.
33Defense counsel reviewed these forgotten stories with AAP in cross-examination. AAP chalked the confusion up to her mistaken timelines, stating: “K, so my memory is shit…I didn’t put that into my timeline because it’s difficult for me to remember everything in my timeline like I’ve said 1,000 times on repeat.”
34With the greatest of respect to AAP as a witness, this confusion goes well beyond a mistaken timeline. It speaks of either a confusion of two episodes that did happen, or, possibly, an imagined narrative or embellishment of an episode that did happen by a witness who cannot remember her last story. However one looks at it, and with every inclination to grant that AAP is sincere in her testimony, it is unreliable testimony.
35Taken as a whole, the two gun stories, with one or the other forgotten each time she speaks about MB, do little to persuade me that MB actually had a gun or threatened her with one. Some encounter in some hotel may well have occurred between them at some time during the 2020-2021 period, but what really happened is impossible to determine from the evidence before me.
36Other than these two specific events, much of AAP’s testimony relates to a description of the 50-50 arrangement that she says she had with MB. According to AAP, that business arrangement was really at the core of their dealings with each other.
37Although one police witness went out of his way to describe AAP and MB as having been in a romantic relationship – i.e. a relationship that the Crown has characterized as one of trust and confidence – AAP herself has denied that was the case. When asked directly about this in cross-examination, she indicated that although their relationship entailed occasional sexual “hookups”, it was in essence strictly business; there was nothing deeper about it.
38She told the police that MB’s contribution was to make appointments with clients and attend to financial matters, while she testified at trial that MB’s contribution was to look after her security and occasionally drive her around. She indicated that MB did not seem to have a proper drivers license, but rather had a temporary paper license.
39It is entirely unclear from her evidence how long the 50-50 arrangement lasted – at some points she seems to say it was only a matter of a week or two, and at other points she seems to describe it as going on for months. At trial she was clear, however, that this arrangement ended with their argument over money at the Mississauga Gates Inn, and that she did not speak to him again until the dramatic events of February 28 to March 1, 2021.
40AAP’s relating of MB’s kidnapping of her on February 28th formed the centrepiece of her evidence at trial. As she described it, she had not spoken with MB since the argument over money in the hotel, which, as indicated, was either in the early fall or mid-winter of 2020.
41AAP testified that on February 28, 2021, as she was either inside or just leaving or walking home from the Lido Hotel in Scarborough, an unidentified woman suddenly grabbed her either around her body or by her backpack, depending on whether one follows her examination in chief or her cross-examination, and pushed her into a white SUV. She said the SUV was being driven by MB.
42She testified that they drove to the parking lot behind the Food Basics store at Morningside and Kingston Road, where they briefly stopped and AAP got out of the car and the woman patted her down and took her cell phone. AAP testified that she did not dare run away because she was fearful that MB might have a gun.
43They then got back into the car, with AAP in the back seat and the woman in the front seat, and drove away. Either MB or the woman told AAP that they were going to Niagara Falls. AAP said that she overheard the two of them talking and saying that the white SUV was the woman’s car, but that MB was the driver.
44According to AAP, while en route to Niagara Falls, MB took her phone and put together and posted an ad for her on the Niagara Falls page on Leo List, a website devoted to sexual content. She explained that he used photos of her that were archived on the site from her own previous ads, and that he made up his own text to accompany the photos. In her testimony, AAP identified a number of features of the Niagara Falls ad that were different from her own ads, including headlines that she thought were more “cheesy” and a line identifying her as “Ethnicity: mixed”. AAP testified that she would only ever describe herself as “white”, not “mixed”.
45The phone number for contact on the ad was AAP’s cell number. She explained that the number could be accessed either through the regular cell phone system or via the internet on the Leo List site. The ad identified her as in town for one night, and, unlike her own ads in the past, contained no restrictions on what the clients could expect from her. The ad used the name Scarlett instead of her real name, which she said is common to sex trade ads. AAP has used other working names before, but there are no other ads in the record using the name Scarlett.
46AAP related that when they eventually arrived at the Falls Lodge and Suites in Niagara, they parked in the parking lot of the hotel and AAP went into the lobby alone to check in. It turned out, however, that her backpack with her I.D. was in the car and so the desk clerk would not allow her to register for a room.
47She then went back to the car and returned to the front desk of the hotel with the unidentified woman, who had AAP’s cell phone containing a photo of AAP’s identity card. That satisfied the hotel clerk, who then asked the woman to forward her a copy of AAP’s card. That forwarding email, with attachment, is in the record. It comes from an email account in the name of Chloe Rose. No one has been able to identify whose account that is, although the desk clerk indicated that the unidentified woman forwarded it from the phone that had AAP’s identification.
48The unidentified woman and AAP then together filled out the hotel’s registration forms. The hotel clerk testified at trial, and stated that there is wifi in the lobby and everywhere in the hotel, and that no password is needed to access it. She also indicated that the wifi can be accessed from the hotel’s parking lot. The clerk saw the SUV in the parking lot, but did not see the occupants because the windows were tinted. It was the clerk’s evidence that the hotel’s records showed that AAP arrived at the hotel at 10:12 p.m.
49After checking in, AAP stated that she went up to the assigned hotel room, room 226. AAP testified that she stayed all night in the room, only leaving it sporadically during the night to go downstairs to give the woman the money that a client paid her. She left the hotel the next morning, got her deposit back from the front desk, and then drove away with MB and the woman in the same white SUV that they arrived in the previous day.
50It was AAP’s evidence that MB and the woman stayed all night in the vehicle in the hotel’s parking lot, except for one visit that they made to a local hospital where the unidentified woman had a recent surgical wound examined. AAP explained that she had overheard the woman talk about her surgery, although it is not clear how she could know that MB and the woman were in the parking lot the rest of the night. She did not indicate that the SUV could be seen from her hotel room, and she had stated that she had only left the room for brief interludes.
51AAP testified that she saw six clients during the course of the night at the Falls Lodge, and that they paid her $100 each. She did not keep any of the money, but rather handed it over to the unidentified woman after each client. AAP indicated that all arrangements for the clients were made by MB. Each time a client arrived, she received a phone call on the hotel room telephone from MB saying that the client was on the way up to the room. She again indicated that she did not call 911 or try to escape the room because she was afraid and thought MB might have a gun.
52Once during the night, the unidentified woman came in to give her some food (which AAP misidentified, saying it was McDonald’s when in fact it was another local takeout). AAP testified that she has stomach troubles and could not eat the food. The full food container was found in the hotel room afterward by the police after being alerted to it by AAP. AAP also testified that at the end of the night, the woman came up to the room and took off her hair braid and threw it in the garbage can. Like the food container, the discarded hair braid was later found by the police in the trash can in the hotel room.
53On the morning of March 1, 2021, MB and the unidentified woman drove AAP back from Niagara Falls. AAP testified that they wanted her to go to another location in Toronto to keep working, but she convinced them to take her to her cousin’s house by telling MB that she had some money there that she owed him. When she got to her cousin’s house, she went into the house and down to the basement while MB and the unidentified woman waited in the SUV out front. From the basement, AAP had her cousin call 911 for her, and after a few minutes AAP herself got on the call to report that she had been kidnapped and forced to do sex work in Niagara Falls.
54AAP’s demeanor on the 911 call, a recording of which was played at the trial, was very emotional. She sounded sincerely upset and panicked. In the meantime, her aunt, TA, went outside to speak with the occupants of the SUV. TA testified at trial, and indicated that she saw a Black man driving and a Black woman in the passenger seat of the SUV. She stated that she recognized the man as the one that AAP had previously pointed out to her as the one who had introduced her to the sex trade. TA did not recognize the woman who was with him.
55Interestingly, although AAP said she was in the basement and had only looked outside briefly to see that the white SUV was still there, she seemed able to relate the entire interaction between TA and MB in the driveway. By the time the police arrived, AAP was just completing her 911 call. At that point, MB and the woman had driven away. That same day, AAP gave her first statement to the police.
56MB was arrested in an unrelated matter a year or so later and was then identified by AAP. A paper drivers’ license identifying him was found in his car. The unidentified woman remains unidentified.
IV. The Corroborating/Confirming Evidence
57Counsel for the Crown submits that the confirming evidence that the court might need to verify the salient points in AAP’s narrative has been provided by photographs and technology. This evidence has been adduced through the Falls Lodge and Suites desk clerk, who played the hotel’s security videos for the court, and by a number of police officers who testified for the Crown.
58The Falls Lodge clerk’s evidence identified AAP and an unidentified woman checking in at the front desk at 10:12 p.m. on February 28, 2021. There is nothing unusual about their behaviour on the hotel’s security video; first AAP comes into the hotel alone, approaches the front desk and has a conversation with the clerk, then exits the hotel and returns moments later with a woman with long braided hair. The two of them speak with the clerk, show the clerk a cell phone, and spend a few minutes filling out registration forms. All of this coincides with AAP’s narrative of their arrival at the hotel in Niagara Falls.
59The clerk also shows some CCTV footage of the Falls Lodge parking lot from February 28, 2021. A white SUV can be seen parked there a short time after 10:00 p.m. The footage does not continue for very long, so one cannot tell how long the car sat in the parking lot, or whether it came and went during the course of the night. After the car first arrives, AAP and the woman with braids can be seen exiting the vehicle and walking toward the hotel entrance.
60At one point, a man gets out of the vehicle as well, but he does not go to the hotel entrance but rather stays with the car. It is noteworthy that the man, who is roughly MB’s size but cannot be identified from the video because there is no view of his face, exits the passenger side of the SUV. The desk clerk testified that she never saw the man in person, but only noticed him later when she reviewed the video footage.
61AAP was never asked about this video and did not identify the man getting out of the car. The Crown contends that, given the circumstances and the way this coincides with the evidence about the timing of AAP’s arrival at the Falls Lodge, the man exiting the vehicle must be MB. I take Crown counsel’s point, but I would observe that it is therefore surprising to see the man exiting the passenger side rather than the driver’s side of the vehicle. In fact, this runs contrary to AAP’s testimony that MB drove the car to Niagara Falls and that the unidentified woman was in the front passenger seat while AAP sat in the back seat.
62On the other hand, if MB was actually in the front passenger seat and the woman was the driver, it might help explain AAP’s evidence that MB used her phone to create a new Leo List ad while on the way to Niagara Falls. It is hard to imagine how he could have put together a fairly elaborate internet posting on a cell phone – not only creating new headlines and text with different fonts, but finding AAP’s photos in the Leo List archives and pasting them into the new advertisement – at the same time as he was driving the SUV. The woman driving what appears to be an expensive BMW SUV would also fit with AAP’s evidence that she overheard them say that the car belonged to the unidentified woman.
63Detective Constable Amanda Sanders visited the Falls Lodge and Suites on March 2, 2021, and at trial introduced photographs that she took of room 226, where AAP said that she spent the night. Those photographs showed that there was an uneaten takeout meal discarded in the room, and that there was a braided hair weave lying in the trash can in the room. These details confirmed part of AAP’s testimony that the unidentified woman had at one point brought her food but that she couldn’t eat it, and that the woman had removed her hair piece early in the morning of March 1, 2021. Officer Sanders also found four used condoms, three in the trash can and one in a paper bag in the room.
64Detective Constable Mark Haljaste is a tech analyst with the Toronto Police Services who executed a search warrant in respect of two cell phones found in MB’s car when he was arrested in 2022. He confirmed that a phone number associated with a SIM card for one of the phones was a number ending in 5832. That is the same number that another police witness, Detective Constable Justin Zeppieri, testified was detected as bouncing off a cell tower at 4663 Kingston Road at 7:45 and 7:48 p.m. on February 28, 2021 – i.e. in the immediate vicinity of the Food Basics where AAP said they stopped before proceeding to Niagara Falls.
65Another police witness, Sgt. Gregory Vandekerckhove, testified that he had analyzed masses of cell phone data from locations where he estimated it was likely that MB had made some calls. He indicated that MB’s cell phone number bounced off of cell towers in the vicinity of both the Food Basics and the Falls Lodge on the night of February 28, 2021.
66Officer Zeppieri also confirmed that AAP’s own cell phone was turned off on February 28, 2021 as of 8:10 p.m. Another police witness, Detective Constable Jennifer Guy, testified that the white SUV in which AAP says she was forced to drive to Niagara Falls, is seen on a security video in the parking area behind the Food Basics on Kingston Road at 9:33 p.m. on February 28th.
67Some of this evidence supports AAP’s narrative, but some raises more questions than it answers. In fact, the timing of the phone calls and security videos tends to make AAP’s already confusing evidence even more confusing.
68In the first place, the combination of Officer Zeppieri’s evidence and Officer Guy’s evidence suggests that the white SUV, which supposedly was driven by MB and which was used by him and the unidentified woman when they grabbed AAP near at or near the Lido Hotel, was at the Food Basics parking lot for a substantial amount of time – from 7:45 p.m. until at least 9:33 p.m. That seems to indicate that more was going on than a quick pat down as AAP described this stop on the way to Niagara. I have no idea what the Food Basics stop was really about, but it makes AAP’s kidnapping narrative even more mysterious than it already was.
69Even more perplexingly, the video footage from the Food Basics parking lot places the white SUV in that lot at 9:33 p.m., on the same night that the same white SUV supposedly pulled into the Falls Lodge in Niagara and AAP checked in at the front desk at 10:12 p.m. That would mean that MB had to drive from Toronto’s east end some 120 kilometers to Niagara Falls in 37 minutes, all while manipulating a cell phone on which he was creating and posting an internet advertisement.
70With all due respect to the way the Crown has put together the evidence in this case, I do not understand how that feat of driving could be accomplished. Certainly, AAP never testified that the SUV was moving at an extraordinarily high speed. In fact, she testified that MB tended to drive in a way that avoided police on the road, which suggests that he would not drive at a speed that attracted extra attention. I can only conclude that there is something seriously wrong about the evidence that either the police witnesses have presented, or that AAP has narrated, or both.
71I do acknowledge that there is some evidence that lends support to the Crown’s case in respect of the Niagara Falls episode on the night of February 28 to March 1, 2021. The Leo List ad for AAP’s services that night in Niagara was found and produced by the police. That, combined with the footage of AAP checking into the hotel and the used condoms found in her room, indicate that AAP accurately described providing sexual services that night at the hotel.
72Furthermore, Officer Vandekerckhove’s analysis of cell tower data dumps shows that MB’s cell phone number pinged 17 times off the cell tower at Lundy’s Lane in Niagara Falls, approximately 1 km from the Falls Lodge, during the night of February 28th. This coincides with incoming calls to AAP’s hotel room, and with her testimony that she got a phone call from MB every time a new client arrived that night. She stated on the witness stand that she saw six clients during her stay at the Falls Lodge.
73Of course, the cell phone evidence does not explain why there were 17 calls – i.e. substantially more calls than suggested by the number of clients that AAP said she saw that night. AAP never described having something more to talk about over the telephone with either MB or the unidentified woman while she was allegedly being held against her will at the hotel.
74It is also very significant to note that the evidence from MB’s cell phone indicates that, in the days leading up to the February 28, 2021 incident, AAP was communicating with MB. This evidence contradicts her testimony that she had by then stopped communicating with him – i.e. after the argument over money when she threw $1,000 on a hotel room floor.
75AAP’s own phone records show that on February 26, 2021, she received 14 text messages from MB’s phone, and that she received another 14 messages from the same source on February 27th. Then, on February 28th, she received 46 text messages from his phone, and one phone call at 7:49 p.m. – i.e. just when they were said to be at or on their way to the Food Basics parking lot. In all, the cell phone evidence from February 26th to 28th runs contrary to AAP’s description of a sudden kidnapping taking place on February 28th. According to her, this shocking event was perpetrated by MB, with whom AAP had not been in touch for weeks or, possibly, months.
76Defense counsel submits that it is also noteworthy that, with all of the police investigations, the search warrants for cell phone data, etc. produced at this trial, there are no bank statements or banking records of any kind produced at the trial. For example, AAP testified that MB must have arranged to pay for the Leo List advertisement that he created on the way to Niagara Falls, but, again, there are no data points or other records from her cell phone (or anyone else’s) establishing that.
77Perhaps more significantly, AAP testified that she would use her bank card to access money to pay MB his share of the proceeds during their 50-50 arrangement. But, again, there are no bank records from her account to confirm it. She also testified that she did not keep any of the clients’ money during the night at the Falls Lodge, but there is no evidence that MB received it.
78In fact, there are also no bank records from any account that purports to be owned by MB. That leaves the trial record silent on whether MB ever actually received any money or other benefit from either the 50-50 arrangement that AAP described, or the coercive situation she described as taking place in Niagara Falls, or from anything else covered by the trial.
79One can surmise from the phone records that MB was in Niagara Falls on the night of February 28th. His phone pinged off a nearby cell tower and called the hotel itself many times when she was checked into her room there. But we don’t know what he said or what he did, and we don’t really know – although we might surmise – why he was there.
80At the same time, we don’t know whether AAP’s own presence there was truly coerced, or was arranged voluntarily through the many communications leading up to it. We also do not know what actually transpired during the first part of the trip to Niagara Falls – i.e. during what appears to be a surprisingly long stopover at Food Basics.
81We don’t even really know whose initiative the entire venture reflects. While it is suspicious that AAP did not have her own cell phone when she entered the Falls Lodge to check in, it is equally odd that she went in alone to check in – as if her kidnappers trusted her to make the ongoing arrangements for her own continued kidnapping. I do not make this observation because I am surmising how people might “ordinarily” act in a similar situation. I simply note that the casualness of the supposed kidnapping perpetrators around the supposed kidnapped victim is one more perplexing feature of the evidence from which I find it difficult to draw any conclusion at all.
V. The Offense of Procuring
82Defense counsel has submitted that without evidence of coercion, without reliable evidence of MB using or brandishing a firearm, and without evidence of MB reaping a benefit, and with contradictory and inconclusive evidence about everything that came before February 28, 2021, the Crown has very little to go on. According to the Defense, all that remains is that MB appears to have driven AAP to Niagara Falls, where she performed sexual services but for which there is no reliable evidence of his participation beyond driving.
83It is the position of Defense counsel that driving, without more, is not an offense under s. 286.3 of the Criminal Code. She gives the example of an Uber driver, who would not be committing an offense if transportation were the driver’s only form of participation in what later turned out to be the Uber passenger’s sale of sexual services.
84It is the position of Crown counsel that this is an overly simplistic attempt at analogy, and that MB was much more than an Uber driver. She submits that driving AAP to a Niagara Falls hotel to check in and stay the night, combined with keeping AAP’s cell phone throughout the trip, shows that MB either knew and participated in AAP’s business or was willfully blind to her activity and to his own participation. As will be discussed below, the Crown is of the view that this activity – knowingly transporting a person for the purpose of providing sexual services – falls within the offense of procuring sexual services under s. 286.3(1).
85As previously indicated, MB might have driven to Niagara Falls as AAP testified, or he might have been in the passenger seat while the unidentified woman drove. Sitting in the passenger seat and creating an ad is the version most suggested by the security video showing him emerging from the passenger seat. On the other hand, it is mysterious how he could have done this on AAP’s cell phone, as she said he did. She had also said that her phone had no data capacity, and on the highway to Niagara there would have been no wifi accessibility. When asked about this, AAP speculated that MB and the woman he was with might have formed a “hot spot” by connecting AAP’s cell phone to another with data availability, but that was a mere guess lacking any evidentiary support.
86It seems to me that if MB were driving, he would have been unlikely to have spent the time on the cell phone creating an advertisement for Leo List. That is an activity that is unlike speaking on a cell phone or even texting on a cell phone. The latter two, although discouraged in terms of safe driving, are commonplace activities for individuals spending time behind the wheel. On the other hand, creating a digital ad involves cutting and pasting photographs, creating new text with changing fonts, and generally designing a web page so that it attracts attention. That strikes me as a very rare activity to be able to engage in while behind the wheel.
87On the other hand, it seems to me that if MB were not driving, he would have been far more likely to have spent the time in the car creating a digital advertisement for Leo List. He would have been in a position to focus on the phone instead of the road in a way that the driver of the vehicle would not be able to do. But, as indicated above, to conclude that this was the case there would have to be evidence as to how the cell phone connected to the internet to access archived photos and, ultimately, to post the ad. That evidence is absent from the record.
88AAP was insistent that MB drove her to Niagara. She also stated that he made the Leo List ad on her cell phone while en route to Niagara. In her testimony, she varied back and forth between saying that she had seen her phone number and other items on the ad created by MB, and saying that she had never seen the ad created by MB before the police later showed it to her.
89AAP did testify that, just looking at the Niagara ad, it would have to have been created by someone other than her. She pointed out that in the body of the ad’s text it indicated: “Ethnicity: Mixed”. AAP stated forcefully that she would never describe herself that way, but rather would always identify herself as “White” since that’s what she is.
90I mentioned to Crown counsel at the hearing that I found this confusing since I thought I had been told that AAP is a person of Indigenous heritage. Counsel confirmed that that is indeed the case, and reminded me that at the outset of her testimony AAP swore an oath on an eagle feather rather than on a Bible or other holy book. Crown counsel is of the view that the “Ethnicity” category on the Leo List ad refers strictly to appearance rather than to ethnicity in the usual sense, which is more synonymous with heritage. I agree that could be its meaning. However, it seems odd that a person of Indigenous or mixed heritage would so vehemently insist that she would never identify herself as being of “mixed” ethnicity.
91If MB did create the ad for her, his conduct fell within the offense of advertising sexual services for consideration (s. 286.4). But, in my view, the evidence is too inconclusive for that. To reach the conclusion that MB breached s. 286.4, I would have to rely on some inherently unreliable testimony by AAP, without any confirmation or corroboration.
92It seems more likely to me that MB did do the driving to Niagara as AAP had said. Again, the supposed kidnapping and pat-down stop at Food Basics make no sense in terms of the rest of the evidence, and the problematically short time frame for the drive to Niagara indicates that something is wrong with the surveillance and cell phone evidence that attempts to trace this car trip. But AAP had to get to Niagara somehow, and her evidence that MB drove her is at least plausible.
93Transporting a person is an element of the human trafficking offense under s. 279.01(1) of the Criminal Code. But for conduct to fall under that section, it must have been done “for the purpose of exploiting them or facilitating their exploitation”. The term “exploitation”, in turn, is defined in s. 279.04 as conduct that entails a threat to the person’s safety if they do not provide the demanded services.
94As indicated, despite AAP’s testimony to the contrary, the record shows voluminous communication between AAP and MB – dozens of texts and a phone call – in the days and hours leading up to AAP entering the white SUV on February 28, 2021. This confirmatory record offered by the police is, in fact, more suggestive of arrangements being made to meet than it is of an unexpected grabbing of AAP off the street. In addition, the testimony of AAP with respect to her fear of MB having a gun, taken in its entirety where one supposed gun-wielding episode is forgotten as soon as another is described, is unreliable. Without more – and there is no more – the evidence suggests that the fear of MB having a gun was real in AAP’s mind only.
95In other words, there is no reliable evidence of threatening conduct to bring the matter within the terms of s. 279.01(1). As Crown counsel points out, that still leaves open the possibility that s. 286.3(1) applies. It is fair to say that while there is no reliable evidence of coercive acts by MB, and no reliable evidence that he took a material benefit from AAP’s sale of services, he was not akin to an Uber driver. He knew what AAP’s lifestyle and income-earning activities were all about when he drove her to Niagara.
96Section 286.3(1) of the Criminal Code provides:
Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
97In R. v. Gallone, 2019 ONCA 663, paras 33-39, the Court of Appeal instructed that the verbs in the sentence – “recruits, holds, conceals or harbours” – are to be read disjunctively. As the Court put it, at para. 33, “For example, the actus reus would be made out if the accused recruited the complainant. It would also be made out if the accused exercised influence over the movements of the complainant.”
98The Court then went on to signal that the word “influence” is a relatively mild one, and does not import a requirement of aggressive conduct. Thus, at para. 47, the offense of influencing a person to engage in sexual services was equated with persuasion rather than with coercion:
Exercising influence over a person’s movements means doing anything to affect the person’s movements. Influence can be exerted while still allowing scope for the person’s free will to operate. This would include anything done to induce, alter, sway, or affect the will of the complainant. 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.
99Accordingly, MB would fall within the terms of s. 286.3(1) if he merely influenced, or persuaded AAP to set herself up for business the night of February 28, 2021 in Niagara Falls. He cannot have been like an Uber driver to come within those terms, as an Uber driver does not persuade a person to take a trip but rather answers to the person’s call. But to fall within the terms of s. 286.3(1), he also does not have to be shown to have threatened or even to have insisted, without threats, that she go to Niagara. All he would have to do to meet the definition of the procuring offense is to have persuaded AAP to do business in Niagara and then to have driven her there.
100In Gallone, and in R. v. A.A., 2015 ONCA 558, para 87, on which Gallone relies, the Court emphasized that not only is coercion not a part of the procuring offense, but exploitation has also been left out. As Justice Watt explained it in A.A., at para. 87, this is not because the act of influencing a person to provide sexual services is inherently and necessarily exploitative, but rather because once sexual services are at issue, “inferring that the accused’s purpose was to exploit the victim will usually be a relatively straightforward task.”
101In other words, if an accused goes out of his way to persuade a complainant to engage in sexual services, even if the persuasion is entirely non-aggressive, there must have been a reason for the accused to take that initiative. And as Justice Watt indicates, the reason to engage in this kind of persuasion is bound to be exploitative.
102With that in mind, one can ask: did MB persuade APP to go to set up business in Niagara Falls for a night? Or, contrarily, did APP persuade MB to drive her to Niagara because she herself wanted to set up business there for a night?
103AAP made it clear in her testimony that while she may have found MB useful in the logistics of her business – making hotel arrangements, managing finances, and perhaps providing security – she did not need him to make money. She testified that prior to meeting MB she was earning a substantial amount in the sex trade, stating that at its highest she earned in the range of $60,000 in a single week. In fact, she said that she had had a very good week just before meeting MB.
104AAP likewise made it clear in her testimony that in the weeks and, perhaps, months before the February 28th trip to Niagara, she was again working independently. In fact, she said that when MB and the unidentified woman met her in the white SUV, she was just coming from the Lido Hotel where she had been working on her own. What she did not make clear – indeed, what she eliminated from her testimony – was that in the days leading up to February 28th she had a great deal of communication with MB. I cannot help but wonder why she left that out of her narrative.
105To be clear, this omission by AAP is far more than a “timeline” error. While she was confused over the timing of the argument with MB in the hotel – it was anywhere from two months to possibly six months before the February 28, 2021 Niagara trip – she was crystal clear about the consequences of the argument. She said emphatically that she had no more dealings, and no more communication, with MB after that. To have forgotten about more than 70 text messages from MB during the three days prior to the Niagara trip is to have forgotten not just the sequence of events in her life, but the substance or essence of those events.
106This evidence strongly suggests that the car ride to Niagara was something other than what it was portrayed as being in AAP’s testimony. I do not pretend to know what was really going on. The record contains evidence of texts being sent and received, but it does not reproduce those texts or reveal their contents. But if as trier of fact I do not know how the Niagara trip really came about, then I equally do not know who persuaded who to go along.
107The existence of the Leo List ad and the condoms in the hotel room trash do confirm AAP’s evidence that there were sexual services involved, and the phone calls from MB’s phone to the Falls Inn confirm that MB was indeed present or played some part in this episode. But inferring any particular purpose for MB being there – whether exploitative or otherwise – would be anything but a straightforward task, as Justice Watt said in A.A. It would only be conjecture. AAP simply did not explain what the pre-Niagara communications said, as she had omitted any mention that they exist at all.
108The 911 call made by AAP and her cousin, and AAP’s genuinely upset demeanor on that call, tell me that something happened on the way home from Niagara, and that whatever transpired involved MB. But the facts are so murky that I do not know what actually happened. The recording of the phone call, dramatic as it is, does not tell me about how the Niagara trip originated or MB’s actual role in it. Nothing in the record does that in any reliable way.
109In all, I can conclude that there was a relationship between AAP and MB, and I believe AAP’s evidence that that relationship became distressing to her. But the record does not provide a sufficient basis to understand the relationship or to make sense of its most prominent events. Accordingly, the charge of procuring – the most likely count to be made out on this very difficult factual record – has, like the other counts, not been proved beyond a reasonable doubt.
VI. Disposition
110All of the charges against MB are dismissed.
Date: February 6, 2025
E.M. Morgan