CITATION: R. v. Lucchesi, 2026 ONSC 326

COURT FILE NO.: CR-24-1/612

DATE: January 23, 2026

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

• and -

SEBASTIAN DAVID LUCCHESI

Monica Gharabaway,

for the Crown

Janelle Belton,

for the accused

Heard: November 10, 12, 14, 17-20, 2025

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

K.L. Campbell J.:

REASONS FOR JUDGMENT

I

Introduction and Overview

1The accused, Sebastian David Lucchesi, is charged with a host of human trafficking-related offences with respect to two young, female complainants, N.B. and S.W. More particularly, the accused is charged with: (1) recruiting, holding, concealing or harbouring, or exercising control, direction or influence over the movements of S.W., for the purpose of exploiting her or facilitating her exploitation, contrary to s. 279.011(1) of the Criminal Code; (2) receiving a financial or material benefit, knowing that it was obtained by the commission of an offence under s. 279.011(1) of the Criminal Code, contrary to s. 279.02 of the Criminal Code; (3) recruiting, holding, concealing or harbouring, or exercising control, direction or influence over S.W., a person who offers or provides sexual services for consideration, for the purpose of facilitating an offence under s. 286.1(2) of the Criminal Code, contrary to s. 286.3(2) of the Criminal Code; (4) receiving a financial or material benefit, knowing that it was obtained by the commission of an offence under s. 286.1(2) of the Criminal Code, contrary to s. 286.2(2) of the Criminal Code; (5) knowingly advertising an offer to provide sexual services for consideration, contrary to s. 286.4 of the Criminal Code; (6) transmitting child pornography, without lawful excuse, contrary to s. 163.1(3) of the Criminal Code; (7) knowingly distributing an intimate image of N.B., knowing (or being reckless) that N.B. did not consent to that conduct, contrary to s. 162.1 of the Criminal Code; (8) distributing child pornography, without lawful excuse, contrary to s. 163.1(3) of the Criminal Code; (9) knowingly advertising an offer to provide sexual services for consideration, contrary to s. 286.4 of the Criminal Code; (10) assault causing bodily harm to N.B., contrary to s. 267(b) of the Criminal Code; and (11) being at large on a release order, failing, without lawful excuse, to abide by the condition to reside with his surety when not on the specified university campus, contrary to s. 145(a) of the Criminal Code. These offences are all alleged to have been committed in the city of Toronto, in the Toronto Region, sometime between August 23 and November 30, 2022.

2Essentially, by this indictment, the Crown contends, inter alia, that the accused trafficked the young female complainant, S.W., in the sex trade industry, in the fall of 2022. The Crown also contends that the accused advertised the sexual services of S.W. and N.B. for consideration, and received much of the money they obtained for providing their sexual services to others. The Crown also contends that the accused transmitted and distributed “child pornography” images, and distributed intimate images of N.B. to her mother. The Crown also alleges that the accused assaulted N.B. and caused her bodily harm. The Crown also contends that the accused violated the residence condition of his judicial interim release order. The defence denies each of these allegations, and the accused has pled “not guilty” to all charges in the indictment. The judge-alone trial of this matter took place over a number of days in November of 2025.

II

The Presumption of Innocence and the

Burden of Proof on the Crown

3The accused is, of course, presumed to be innocent. That presumption of innocence has been with the accused throughout the trial and remains with him unless and until the Crown establishes his guilt for these alleged offences beyond a reasonable doubt. This heavy burden of proof never shifts. The accused has no obligation to establish his innocence. This important and long-standing principle of our criminal law is constitutionally entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. See: R. v. Dubois, 1985 10 (SCC), [1985] 2 S.C.R. 350, 22 C.C.C. (3d) 513, at p. 357; R. v. Pearson, 1992 52 (SCC), [1992] 3 S.C.R. 665, 77 C.C.C. (3d) 124, at pp. 682-683, 687.

4It is also important to recall the nature of the heavy burden of proof on the Crown. As juries are typically instructed, a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. Of course, it is not enough for a trier of fact, whether it be judge or jury, to believe that an accused is probably guilty or likely guilty, as that is not proof beyond a reasonable doubt. However, the Crown is not obliged to establish, with absolute certainty, the alleged guilt of an accused, as such a standard of proof is impossibly high. Nevertheless, as the Supreme Court of Canada stated in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. At the end of the case, after considering all of the evidence, a trier of fact must be sure that an accused committed the alleged offence before finding him or her guilty of that offence, because it is only at that point that the trier of fact can be satisfied beyond a reasonable doubt as to the guilt of the accused. See also: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, at paras. 13-43; Mr. Justice David Watt, Manual of Criminal Jury Instructions (2015, 2nd ed.), at pp. 261-267.

5Moreover, in a case such as the present one, where the Crown’s case depends, at least in part, upon circumstantial evidence, the application of this burden of proof requires that the trier of fact must be satisfied that the only reasonable or rational inference that can be drawn from all of the circumstantial evidence is that the accused is guilty. If there are reasonable inferences other than guilt, the Crown’s evidence does not establish the alleged guilt of the accused beyond a reasonable doubt. See: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 17-22, 28-30, 32-38; R. v. Pearle, 2016 ONCA 954, [2016] O.J. No. 6505, at para. 7; R. v. Biggs, 2016 ONCA 910, 34 C.R. (7th) 147, at para. 17. Of course, the circumstantial case against the accused must be considered as a whole. It is only the cumulative effect of all of the evidence that must satisfy the Crown’s heavy burden of proof in order to justify conviction. Individual items of circumstantial evidence must not be subjected to isolated scrutiny in a piecemeal analysis, as they are merely links in the chain of ultimate proof. See: R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, at p. 361; R. v. Uhrig, 2012 ONCA 470, [2012] O.J. No. 3011, at para. 13; R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82.

III

The Testimonial Silence of the Accused

6Of course, an accused need not testify in his or her defence and, if the accused elects to remain silent in the face of the criminal allegations, as the accused elected to do in the present case, no adverse inference can be drawn against him for his reliance upon that important right. As the Supreme Court of Canada has confirmed, an accused’s testimonial silence at trial “is not evidence” of guilt and “cannot be used as a makeweight for the Crown in deciding whether the Crown has proved its case.” In other words, if, after considering the whole of the evidence, the trier of fact is not satisfied that a charge against an accused has been proven beyond a reasonable doubt, the trier of fact cannot look to the accused’s failure to testify to remove that doubt and thereby help the Crown prove its case beyond a reasonable doubt. See: R. v. Prokofiew, 2012 SCC 49, [2012] 2 S.C.R. 639, at paras. 4, 10-12, 15, 20-21, 26, 64-65; R. v. Noble, 1997 388 (SCC), [1997] 1 S.C.R. 874, 114 C.C.C. (3d) 385, at para. 72; R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at paras. 97-98; R. v. Caron, 2014 BCCA 111, [2014] B.C.J. No. 492, at paras. 24-26; R. v. Duhamel, 2012 ONSC 6449, [2012] O.J. No. 5817, at paras. 91-92.

IV

The Important Background Facts

7Having carefully considered all of the evidence in this case and the submissions of counsel (both orally and in writing), I am satisfied beyond a reasonable doubt of all of the following facts.

8The evidence in this case has overwhelmingly established that the accused owned and operated a cell phone with a phone number of 343-422-3105. This particular phone number is especially important for three reasons. First, as the cell phone tower evidence proved, this phone was used in the vicinity of the cell phone tower located at 65 Dundas Street East, which was in close geographical proximity to where the two young complainants engaged in most of their sex trade work. Second, this phone number was also the phone number associated with the “advertisements” for the sexual services of both of the complainants that were posted on “Leolist.” Third, this phone number was the same one found in the complainant S.W.’s phone under the contact name “sb” and was the phone number that the police successfully used to respond to the “Leolist” advertisements for the complainants during their investigation.

9The evidence also overwhelmingly established that the accused frequently purchased “Litecoin” cryptocurrency from an automated HODL bank machine, which funds were necessary in order to pay for the “Leolist” internet “escort” advertisements for the sexual services of these two young females. The accused consistently made these purchases at a cryptocurrency automated teller machine (ATM) that took photographs of his face (and the green jacket he consistently wore) at the time he made each purchase. A receipt from one of these transactions was found at unit 1709, of 200 Dundas Street East, which was an apartment unit rented by the accused, during the execution of a search warrant for that location. Further, during the execution of this search warrant, the police also found a backpack that contained identification documentation and bank cards for the accused “Sebastian Lucchesi.” Moreover, the police investigation revealed that the cryptocurrency purchased by the accused was, in fact, used to pay for the “Leolist” advertisements for the sexual services of S.W.

10The email accounts that were associated with the “Leolist” accounts for the sexual services of N.B., namely, staysilentsb@gmail.com, and the sexual services of S.W., namely, poseidonsb19@gmail.com, both belonged to the accused and were associated with his phone number. Further, the facebook profile of “Mar Poseidon,” which was used to rent the unit 1709 apartment at 200 Dundas Street East in Toronto, also belonged to the accused, and profiled a photograph of the accused (wearing the same green jacket).

11The police first became involved in this matter in mid-September of 2022, when N.B., a 15-year-old female, was reported missing. Her mother advised the police that her young daughter was a “sex trade worker” and the police viewed this as a “high risk situation.” The police investigation revealed the existence of more recent advertisements for the sexual services of N.B., and which shortly provided a telephone number 343-422-3105, which (as I have said) was owned and operated by the accused. The police investigation proceeded thereafter into the similar sex trade activities of the complainant S.W. Ultimately, the police were able to rescue the 15-year-old S.W. and arrest the accused in and around the apartment unit where S.W. was providing her sexual services for consideration.

12I should say, before turning to the various specific counts alleged in the indictment, despite some obvious frailties regarding some of the background facts, I have largely accepted the testimony of S.W. as to her activities with the accused in connection with her work in the sex trade. Overall, I found S.W. to be a credible and reliable witness, and certain aspects of her evidence were corroborated by other objective pieces of evidence.

V

The Human Trafficking of S.W.

The Procuring of S.W.

13In the first count of the indictment, the accused is charged, essentially, with the “human trafficking” of the complainant S.W. More particularly, the accused is charged that, in the month of November of 2022, in Toronto, he did “recruit, hold, conceal or harbour a person, or exercise control, direction, or influence over the movements” a person, namely S.W. “for the purpose of exploiting or facilitating the exploitation of that person,” contrary to s. 279.011(1) of the Criminal Code. See, generally: R. v. T.J.F., 2024 SCC 38, 497 D.L.R. (4th) 441, at paras. 52-71, 91-95, 97-109.

14This offence, as charged in the indictment, has two essential elements, namely: (1) that the accused intentionally did recruit, hold, conceal or harbour S.W., or exercise control, direction, or influence over the movements of S.W.; and (2) that the accused engaged in this conduct for the purpose of exploiting or facilitating the exploitation of S.W. This conduct by the accused must have been intentional, not accidental.

15It is important to appreciate that the Criminal Code expressly provides, in ss. 279.01(2) and 279.011(2), that “no consent to the activity that forms the subject-matter of a charge” of human trafficking (whether the complainant is over, or under, 18 years of age) “is valid.” In other words, Parliament has determined that a person (of any age) cannot legally consent to someone recruiting, transporting, transferring, receiving, holding, concealing or harbouring, or exercising control, direction, or influence over their movements, for the purpose of exploiting or facilitating the exploitation of them. In short, the potential consent of any complainant is simply not a defence to a charge of “human trafficking,” and the Crown is not obliged to prove that the complainant did not consent to the conduct that forms the subject matter of the alleged offence. See: R. v. Horton, 2025 ONSC 1344, at para. 25.

16Further, the actus reus of the offence of “human trafficking” is clearly disjunctive. In other words, the conduct requirement of this offence is established if the Crown is able to prove that the accused intentionally engaged in any of the alleged forms of prohibited conduct. Accordingly, in the present case the first question is whether the accused intentionally recruited, held, concealed or harboured S.W., or exercised control, direction, or influence over the movements of S.W. See: R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, at paras. 14-17, 29-41, 42-51; R. v. A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377, at paras. 70-73, 79, 80-88; R. v. T.J.F., at para. 92.

17It is apparent that s. 279.011(1) of the Criminal Code (like s. 279.01(1) of the Code) captures “two clusters” of prohibited conduct, in that: (1) it prohibits intentional conduct by an accused that recruits, transports, transfers, receives, holds, conceals, or harbours another person; and (2) it also prohibits intentional conduct by an accused that exercises control, direction or influence over the movements of another person. See: R. v. T.J.F., at paras. 91-95.

18In this regard, the term “recruits” means to persuade another to do or help with something; the term “holds” means to keep possession of, to detain, to possess, to occupy; the term “conceals” means the act of removing the person from sight and/or notice; and the term “harbors” means to provide shelter. See: R. v. Lucas-Johnson, 2018 ONSC 3953, at para. 225; R. v. Crosdale, 2018 ONCJ 800, at paras. 139-168.

19In this regard, the phrase “exercising control” refers to invasive, intentional conduct, and it is the exercise of a power that leaves the controlled person with little choice over their movements. This conduct includes acts of direction and influence.

20The phrase “exercising direction” means that direction is exercised over the movements of a person when rules or behaviours are imposed on them, that guide their movements. The exercise of direction does not, however, preclude the possibility that the directed person (i.e. S.W. in this case) might be left with some latitude, or a measure of discretion, regarding their movements.

21The phrase “exercising influence” has a somewhat similar meaning to the phrase “exercising direction,” except that it includes somewhat less invasive and less coercive conduct than “exercising direction.” Rather, it includes any action exercised over the movements of another person for the purpose of aiding, abetting or compelling that person to engage in a particular kind of conduct (in this case, the selling of their sexual services for money). Of course, influence can be exerted or exercised over another person while still allowing some scope for the person’s free will to operate concerning their movements. Accordingly, this would include anything done to induce, alter, sway, or affect the will of the complainant concerning her movements.

22Thus, 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. See: R. v. Gallone, at paras. 42-52; R. v. Ochrym, 2021 ONCA 48, 69 C.R. (7th) 285, at paras. 29-36.

23Exercising control, direction or influence over the movements of another person generally suggests a situation that results from a series of acts rather than a single, isolated act. The term “exercises control, direction or influence”, evokes a scenario in which a person, by virtue of their relationship with the complainant, has some power – whether physical, psychological, moral or otherwise – over the complainant and her movements. These terms characterize the nature of the conduct in terms of the relationship between the accused and the complainant in relation to the complainant’s mobility. In other words, by virtue of the relationship between an accused and the complainant, the accused was in a position, or had the ability to control, direct, or influence the movements of a complainant.

24The second element of this offence defines the subjective mental element, or the mens rea of the offence. The Crown must establish that the accused intentionally engaged in this prohibited conduct for the purpose of exploiting or facilitating the exploitation of S.W.

25The Criminal Code, in s. 279.04, helpfully defines the term “exploitation.” According to this statutory definition, someone “exploits” another person if they “cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all of the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.” A number of principles emerge from this statutory definition.

26The terms “labour” and “services” in this definition must be understood, in this context, to have their ordinary broad meaning, and would clearly include all manner of sexual services.

27The specific “expectation” caused by the prohibited conduct of the accused, that the safety of the complainant, or another person known to them, would be threatened if they failed to provide the labour or service, must be a “reasonable” expectation. In other words, the test to be applied in these circumstances is an objective one. Any evidence as to the subjective belief of the complainant in this regard can properly be considered, but the test is an objective one: would a reasonable person, in the circumstances of the complainant, be expected to believe that their safety, or the safety of a person known to them, would be threatened if they failed to provide the labour or service.

28Of course, in the application of this standard, the notional “reasonable person” is not someone who is exceptionally timid, apprehensive or worried, nor is it someone who is exceptionally brave, daring, or courageous. Rather, a reasonable person is someone of normal temperament and ordinary prudence, as well as someone of the same gender and age as the complainant and someone in her particular circumstances (including any particular vulnerabilities, such as lack of education, prior victimization, socio-economic disadvantage, and social and family isolation).

29This determination as to the nature of the expectation must be made, as I have already indicated, on the basis of all of the circumstances of the case. For example, in determining whether the accused “exploited” S.W. within the meaning of this definition, a trier of fact may properly consider, for example, whether the accused threatened the use of force or coercion, whether the accused used deception, or psychological pressure, or whether the accused abused a position of trust, power or authority. While these are just some possible examples, all of the circumstances must be considered. See: R. v. T.J.F., at paras. 104-106.

30More particularly, as the Court of Appeal for Ontario observed, in R. v. Sinclair, 2020 ONCA 61, 384 C.C.C. (3d) 484, at para. 15, it may be important to consider all of the following listed circumstances in determining whether the conduct of the accused could reasonably be expected to have caused the complainant to fear for her safety (or the safety of another known person):

• the presence or absence of violence or threats;
• coercion, including physical, emotional or psychological coercion;
• deception;
• abuse of trust, power, or authority;
• vulnerability due to age or personal circumstances, such as social or economic disadvantage and victimization from other sources;
• isolation of the complainant;
• the nature of the relationship between the accused and the complainant;
• directive behaviour;
• influence exercised over the nature and location services provided;
• control over advertising of services;
• limitations on the complainant’s movement;
• control of finances;
• financial benefit to the accused, and
• use of social media to assert control or monitor communications with others.

31The reasonably expected belief in the threatened “safety” of the complainant or the safety of someone known to them includes not only their physical safety but also their psychological safety. Further, as the Crown need prove only that the belief in the threat to safety could be reasonably expected, their physical or psychological safety need not actually be threatened. It is enough if the belief in such a threat to safety could reasonably be expected in all of the circumstances if the labour or service was not provided.

32This element of the offence requires the Crown to prove that the accused engaged in the prohibited conduct “for the purpose of exploiting” S.W., or for the purpose of “facilitating her exploitation.” This requirement goes beyond proof that the accused engaged in the prohibited conduct intentionally. It requires the Crown to establish that the accused intentionally engaged in the prohibited conduct for that express goal or desired result, namely, to exploit S.W., or to facilitate her exploitation. To engage in conduct for a particular “purpose” means that the accused directed his mind to that prohibited consequence (i.e. the exploitation of S.W.) and intended to bring that prohibited consequence about by his conduct, or at least knew that its occurrence was a virtual certainty from his conduct. The Crown need not establish, however, that the accused was successful in achieving his aim. In other words, no actual exploitation needs to be proven by the Crown to have resulted from the prohibited conduct of the accused. See: R. v. Gallone, at paras. 53-55. But, the Crown must prove that the accused intentionally engaged in the prohibited conduct with that ulterior purpose in mind – to exploit S.W., or to facilitate her exploitation.

33Turning to the evidence in the present case, I am satisfied beyond a reasonable doubt that the accused is guilty of the offence of trafficking S.W. I am satisfied that the accused exercised control, direction, or influence over the movements of S.W. for the purpose of exploiting her or facilitating her exploitation in the sex trade.

34Text messages between the accused and S.W. establish that the accused made travel arrangements for her, so that she could provide her sexual services to men for consideration. Further, the accused told S.W., in no uncertain terms, about how she needed to have the “notifications” on her phone always turned on, so that he could always be in communication with her. The accused clearly wanted to be able to ascertain, with some precision, when she was with a particular client, and wanted to know, virtually at all times, when he could send her to her “next” assigned sexual services client. At one point, the accused sent a text message to S.W. that said: “Why the fuck is your phone on silent bitch,” and then demanded that she “Turn on [her] fucking notifications.” On other occasions, the accused told her when to shower, what clothes she was to wear, told her that he would “Uber” her to a particular location, and told her that she was not to “fucking go back home.” He let her eat just once a day.

35In addition, the accused set the price for all of the sexual services to be potentially provided to customers by S.W. The accused also told her to take “nude” pictures of herself (without her face in the photographs), so that these pictures could be included in the advertisements for her sexual services and sent directly to clients. The evidence established that, on at least one occasion in mid-November of 2022, the accused used one of the nude photographs that S.W. sent him, in one of the “Leolist” advertisements for her paid sexual services.

36The accused also told S.W., in text messages, that she was not to engage in any sexual services with clients, until he told her that he had received the money for those sexual services. The accused told her, more specifically, “Don’t do shit, until I say [the money is] in.” The accused also told S.W. about how much some men were paying for her sexual services, told her what services (and how many services) she was to provide to individual clients, and that the client was to use a “condom” unless he was willing to pay extra for that particular sexual service, namely, a “bbbj” (i.e. a bare back blow job).

37The accused also told S.W. how to act with the sexual services clients he sent her to. The accused told her to “get off [her] phone” and “be in control.” The accused also told her what to say to clients about any telephone miscommunications (i.e. that she has two phones), and to try to be “consistent” with the manner in which he was communicating with the clients.

38I am also satisfied beyond a reasonable doubt that the accused harboured S.W., for the purpose of exploiting her, or for the purpose of facilitating her exploitation in the sex trade, in that he provided S.W. with shelter, such as apartment 1709 located at 200 Dundas Street East in Toronto, where she was able to provide her sexual services to clients for monetary consideration, and where she was ultimately located and rescued by the police.

39In my view, the accused clearly intentionally engaged in this prohibited conduct for the purpose of exploiting S.W., or for the purpose of facilitating her exploitation, in the sex trade. The accused personally advertised the sexual services of S.W., set the advertised price of those sexual services, provided the physical location for many of the sexual services that S.W. provided to her clients, and did all of this so that he could obtain the financial rewards that S.W. earned from providing her sexual services to clients.

40Indeed, I have no difficultly concluding that the accused caused S.W. to provide her sexual services to clients for consideration, by engaging in conduct that, in all of the circumstances, could reasonably be expected to cause S.W. to believe that her safety would be threatened if she failed to provide her sexual services to clients when she was told to by the accused. See: Criminal Code, s. 279.04; R. v. Sinclair, at para. 15; R. v. T.J.F., at paras. 104-106; R. v. McEwan, 2022 ONSC 4298, at paras. 111-115.

41In this regard it is important to recall that S.W. was young (i.e. just 15 years old) and vulnerable and was completely lacking in any financial resources, and she was simply without any family support. The accused promised her great financial rewards, while keeping her financial rewards, from her work in the sex trade, for himself. In my view, anyone in the unfortunate position of S.W. would reasonably fear for her safety (at least her psychological safety) unless they continued to provide their sexual services for consideration, as the accused demanded. I am satisfied beyond a reasonable doubt that the Crown has well established this element of the offence of human trafficking. I reject the testimony of S.W. to the contrary.

42It is also noteworthy in this regard that, on occasion, the accused would hide himself in a closet of the apartment at 200 Dundas Street East, when S.W. entertained clients in that location with her sexual services for consideration. In a text message that the accused sent S.W., that confirms this fact, the accused told S.W. to “make sure” that the client did not “open the closet” on the way into the apartment. This was, of course, where he had hidden himself, so that he could see for himself that S.W. was providing sexual services to other men for consideration, as he directed, and that she was physically safe in doing so.

43As the accused is charged with trafficking S.W. contrary to s. 279.011(1) of the Criminal Code, the Crown is obliged to prove that S.W. was under the age of 18 years old at the time of the alleged offence. I am convinced that S.W. was, in fact, just 15 years of age at the time of the alleged offence, in November of 2022. Further, S.W. told the accused that she was only 15 years old when he first sent an “Uber” to retrieve her from the group home where she was then staying. S.W. did not retreat from this testimony in cross-examination or agree that she wanted the accused to believe that she was at least 18 years old. Moreover, as the photographs of her at the time of the alleged offence reveal, S.W. had a very youthful appearance. I am satisfied beyond a reasonable doubt that: (1) the accused knew S.W. was under 18 years of age; or (2) the accused was at least willfully blind to the fact that S.W. was under 18 years of age, at the time of the alleged offence.

44Accordingly, the accused must be found guilty of this offence as the Crown has established all of the essential elements of this alleged offence beyond a reasonable doubt.

45The accused is also charged with procuring S.W. More particularly, in the third count of the indictment the accused is charged that he did, in Toronto, in November of 2022, recruit, hold, conceal or harbour S.W., or exercise control, direction or influence over S.W., who offers or provides sexual services for consideration, for the purpose of facilitating an offence under s. 286.1(2) of the Criminal Code, contrary to s. 286.3(2) of the Criminal Code.

46Essentially, for the reasons already provided, I am satisfied beyond a reasonable doubt that the accused procured S.W., as alleged in count 3 of the indictment. The accused recruited S.W., and harboured her, and exercised control, direction or influence over S.W., who offered to provide (and who did provide) her sexual services for consideration, and that the accused did so for the purpose of facilitating an offence under s. 286.1(2) of the Criminal Code. Again, the complainant was just 15 years old at the time of the offence, and the accused either knew S.W. was under 18 years of age at the time, or he was willfully blind to the fact that S.W. was under 18 years of age.

47It is noteworthy, however, that according to s. 150.1(5) of the Criminal Code, it is not a defence to a charge under s. 286.3(2) of the Criminal Code that the accused believed the complainant was 18 years of age or more at the time of the alleged offence “unless the accused took all reasonable steps to ascertain the age of the complainant.” As I am satisfied that the accused took no reasonable steps to ascertain the true age of the complainant, he cannot rely upon any potential claim to have honestly believed that S.W. was at least 18 years of age at the time of the alleged offence.

VI

Financial or Material Benefits Received by the Accused

48The accused is charged with two counts of receiving a material benefit knowing, generally speaking, that it came from the sexual services of S.W for consideration.

49More particularly, in count 2 of the indictment, the accused is charged that, in Toronto, in November of 2022, he did receive a financial or material benefit, knowing that it was obtained by the commission of an offence under s. 279.011(1) of the Criminal Code; and in count 4 of the indictment, the accused is charged that, in Toronto, in November of 2022, he received a financial or material benefit, knowing that it was obtained by the commission of an offence under s. 286.1(2) of the Criminal Code.

50The only significant legal difference between these two charges is that, with respect to count 2 of the indictment, the allegation is that the accused received the financial or material benefit, knowing that it was obtained by the commission of the “human trafficking” offence contrary to s. 279.011(1) of the Criminal Code, while the allegation contained in count 4 of the indictment, charges that the accused received the financial or material benefit, knowing that it was obtained by the commission of the offence of “obtaining sexual services for consideration” contrary to s. 286.1(2) of the Criminal Code.

51I have no doubt that the Crown has established that the accused committed each of these offences beyond a reasonable doubt. It is obvious, according to the evidence, that the accused received the great majority of the money that S.W. earned in the sex trade, providing her sexual services to clients for money. The accused knew full well that the money he received came from the commodification of the sexual services of S.W. and from his human trafficking of her in the sex trade. There were, indeed, many text messages between the accused and S.W., wherein the accused reveals how keenly interested he was in the money that S.W. was earning in the sex trade. Accordingly, the accused must be found guilty of these two offences as well. See: R. v. Antoine, 2019 ONSC 3843, [2019] O.J. No. 3325, at paras. 28, 37-38; R. v. Musara, 2022 ONSC 2835, at para. 239-246.

VII

Advertising the Sexual Services

Of Both Complainants

52In counts 5 and 9 of the indictment, the accused is charged with advertising the sexual services of both of the complainants in this case, in that it is alleged that, in Toronto, in November of 2022, the accused knowingly advertised “an offer to provide sexual services for consideration,” contrary to s. 286.4 of the Criminal Code. One count relates to the complainant S.W., and the other count relates to the complainant N.B.

53The evidence convinces me beyond a reasonable doubt that the accused is guilty of both of these offences. He clearly posted the advertisements for the sexual services, for consideration, of both of the complainants.

54I reject the defence suggestion that one or both of the complainants may have secretly used the accused’s phone or email addresses, without his knowledge and consent, to post their own advertisements for their respective sexual services. There is simply no evidence in support of this argument. Moreover, this speculation is inconsistent with the evidence that was adduced at the trial of this matter.

55In the result, the accused will be found guilty of both of these alleged offences.

VIII

The Two “Child Pornography” Offences

56The accused is charged, in count 6 of the indictment with transmitting child pornography, contrary to s. 163.1(3) of the Criminal Code. This count relates to S.W., and is alleged to have been committed by the accused in Toronto, in November of 2022. The accused is also charged, in count 8 of the indictment, with distributing child pornography, contrary to s. 163.1(3) of the Criminal Code. This count relates to N.B. This offence is alleged to have been committed by the accused in Toronto, in September of 2022.

57I am satisfied beyond a reasonable doubt that the accused knew full well that both of the complainants were under 18 years of age, and he knew that the images of them at that time were “child pornography” within the meaning of s. 163.1 of the Criminal Code, given that they are clearly “visual representations” of the young complainants wherein their dominant characteristic is the depiction, for a sexual purpose, of their sexual organs or anal regions. Further, I am satisfied that the accused transmitted the material in relation to S.W., and distributed the material in relation to N.B. Accordingly, the accused is guilty of both of these offences. See: R. v. Gardiner, 2017 ONSC 3904, at paras. 15-16, 22, 27, 32; R. v. W.(T.), 2014 ONSC 4532, [2014] O.J. No. 3667, at paras. 26-27.

IX

Distributing Intimate Images

58The accused is charged in count 7 of the indictment that, on or about August 23, 2022, in Toronto, he did “knowingly distribute an intimate image” of N.B., knowing (or being reckless) that N.B. did not consent to that conduct, contrary to s. 162.1 of the Criminal Code.

59Section 162.1(2) of the Criminal Code provides that an “intimate image” includes any “visual recording” of a person who is nude, or is exposing their “genital organs or anal region or her breasts,” or who is “engaged in explicit sexual activity,” and the intimate image was taken in circumstances giving rise to a “reasonable expectation of privacy” surrounding the intimate image, and the person depicted “retains a reasonable expectation of privacy” when the intimate image is subsequently distributed.

60It is perhaps needless to say that consent to the taking of an intimate image is not consent to the subsequent distribution of that intimate image. Accordingly, a person may consent to the taking of an intimate image of them, but not consent to the distribution of that intimate image.

61The great majority of the relevant images in this case, in my view, constitute “intimate images”, in that some of them clearly display N.B. engaged in explicit sexual activity, or show her nude or nearly nude body, or simply expose her genital organ, anal region or breasts.

62The nature of these intimate images strongly suggest that N.B. had a reasonable expectation of privacy in connection with these intimate images – when they were first created, and when they were later transmitted by the accused. In any event, I am satisfied beyond a reasonable doubt that N.B. always possessed a reasonable expectation of privacy in respect of these intimate images of her, and never gave her consent, to anyone, to send those images to anyone else (including her own mother).

63While some of these images were used by the accused in creating and placing his advertisements for the sexual services of N.B. (without showing the face of N.B.), the anonymity of these images was subsequently destroyed when the accused transmitted these intimate images to the mother of N.B., telling her, in an accompanying message. that her daughter, N.B. was the “biggest slut he had ever seen.” This took place after the personal relationship between the accused and N.B. had broken down, and the accused seemed motivated for humiliation and revenge against N.B.

64However, the evidence is clear that these intimate images of N.B. were only sent to one person, namely, the mother of N.B. However, the indictment allegation that the accused “distributed” these intimate images requires the Crown to prove that the accused sent the intimate images to more than one person. See: R. v. Cole (1981), 1981 1925 (ON CA), 34 O.R. (2d) 416, 64 C.C.C. (2d) 119 (C.A.); R. v. Faulkner (1997) 1997 1193 (ON CA), 120 C.C.C. (3d) 377 (Ont.C.A.) at para. 18.

65However, in my view, after hearing the submissions of counsel for the respective parties on this issue, the indictment can properly be amended at this stage, without any prejudice or unfairness to the accused, so that it alleges that the accused “transmitted” the intimate images of N.B., instead of “distributed” the intimate images of N.B. See: R. v. G.F., 2018 BCCA 81, at paras. 45-47, 55-70, 71-83. I will amend count 7 of the indictment accordingly.

66I am satisfied beyond any reasonable doubt that the accused is guilty of the offence, as alleged in the amended count 7 of the indictment.

X

Assault Causing Bodily Harm

67In count 10 of the indictment the accused is charged with assault causing bodily harm to N.B., contrary to s. 267(b) of the Criminal Code. This offence is alleged to have taken place in Toronto or about November 24, 2022.

68There seems little doubt but that N.B. suffered some kind of a head injury on or about November 24, 2022. There are photographs of this injury that appear to prove its existence. Defence counsel for the accused does not contend otherwise.

69While the evidence relating to this count of the indictment certainly raises suspicions that this injury was caused by the accused, I am not satisfied beyond a reasonable doubt that the accused is guilty of this offence. I am simply not convinced to the requisite degree of certainty that the head injury suffered by N.B. was caused by the accused. Accordingly, the accused must be found not guilty of this alleged offence.

XI

Failure to Comply With Residence Condition of

Judicial Interim Release Order

70In count 11 of the indictment, the accused is charged with being at large on a release order, and failing, without lawful excuse, to abide by the condition to reside with his surety when not on a specified university campus outside of Toronto, contrary to s. 145(a) of the Criminal Code. This offence is alleged to have been committed in Toronto in November of 2022.

71In November of 2022, the accused was clearly bound by a recognizance that required him to reside with his surety when he is not on campus at a named university located outside of Toronto. There was some evidence that the accused lived on this university campus in November of 2022, and spent some time there with the complainant S.W. The evidence also shows, however, that the accused and S.W. were in Toronto, and staying at a short-term rental unit in downtown Toronto for a period of time in November of 2022.

72While the accused was clearly not on the campus of the university outside Toronto for the whole of November of 2022, the evidence does not convince me beyond a reasonable doubt that the accused had, in fact, abandoned his residence there, and was then living in Toronto. As defence counsel persuasively argued, people leave their residences for a short vacation all the time, and temporarily travel to some other geographical location. But, that does not mean that they no longer reside in that residence. In any event, I am not satisfied that the accused was in violation of the residence term of his judicial interim release order. Therefore, the accused must be acquitted of this alleged offence. See: R. v. Gravino, [1991] O.J. No. 2927 (C.A.), at para. 1; R. v. J.E., [1994] 2470 (B.C.S.C.) at pp. 3-5; R. v. Wake, 2011 ONCJ 910, at paras. 86-92.

73I note, in passing, that if the Crown wants an accused to be subject to a condition that he or she must always reside at a specific location each and every night (without exception), the Crown can ask that such a condition be imposed when an accused is released on bail. But, in circumstances where a “residence” condition is imposed, such as the one in the present case, an accused may be temporarily absent from that specified residence overnight (or for a short period of time) without necessarily being in violation of his or her judicial interim release order.

XII

Conclusion

74In the result, the accused is found not guilty with respect to the charges in counts 10 and 11 of the indictment, but he is found guilty with respect to all of the remaining counts of the indictment, namely, counts 1 through 9 of the indictment.

K.L. Campbell J.