Marlene's Case — Keep Bawdy House — Sentenced

Between
Her Majesty the Queen, and
Marlene K.

[1998] O.J. No. 6513

Ontario Court of Justice
Brampton, Ontario
Judge Waldman

Oral judgment:  25 March 1998
(93 paras.)

WALDMAN J. (orally):  —

¶ 1     CLERK OF THE COURT:  Marlene K., you are charged that between the 5th day of February, and the 2nd day of June, in the year 1997, at the City of Mississauga, in the said Central West Region, unlawfully did keep a common bawdy house located at 125 Dunlyn Street West, Apartment number 12**, Mississauga, contrary to s. 210(1) of the Criminal Code of Canada.

¶ 2     To this charge, how do you plead, guilty or not guilty?

¶ 3     MS K.:  Guilty.

¶ 4     CLERK OF THE COURT:  Thank you. Have a seat.

¶ 5     THE COURT:  Facts, please.

¶ 6      MS WARD:  Okay, Your Honour, on February 6th, 1997, members of the vice unit made enquiries into an advertisement in NOW Magazine, adult entertainment classifieds, that read:  "Mississauga, blonde, passionate 40 year old with a warm and tender touch," and a phone number. The police called. They were quoted a price of $160.00 for a session, and they were directed to place a second call to the service from a public telephone on Dundas Street. They placed a second call, and they were directed to 125 Dunlyn Street West, Mississauga, and given an entry code of 333. Further investigation revealed that the entry code — that that entry code is assigned to Apartment 12**, the apartment of the accused. It was further learned that Peel Living had received an anonymous complaint in September of '96 alleging that a tenant there was operating an escort service on the 12th floor, which they had associated to Apartment 12**.

¶ 7      Further investigations of other publications between February and May, '97 revealed that this escort agency, Midnight Sun, to be advertised in various publications, including EYE Magazine, Toronto Sun, and others.

¶ 8     On May 1st, '97 an officer of the morality bureau contacted an advertisement associated to this premise. The officer was quoted $180.00 for a session, and directed, again, to place a second call from the previous — previously-indicated location, and directed to the accused's apartment.

¶ 9      The accused immediately wished to collect the fee, and when questioned by the officer what he could expect she advised, "Massage. It's just if you want it. I love oral, and I like to be on top for intercourse." The officer made excuses, paid the accused a fee for wasting her time, and left the premises.

¶ 10     On May 10th, '97 a second officer from Morality Bureau contacted the advertisement. He was directed to a pay phone. He was quoted a price of $150.00 for a fully body massage and lots of fun. The officer placed a second call, was instructed, and was directed to the accused's apartment. Upon arrival the accused collected $140.00 from the officer, at which point the officer stated that he hoped $140.00 would include intercourse to which she replied "Yes, only I'm on top." The accused then retrieved a condom from the drawer and advised that it was for their protection. The officer declined her offer, requested that she dance for him, and then he left the premises.

¶ 11     There was a search warrant on June 2nd, '97. And then a third officer also attended and received a quote as well, and also received a promise of sexual acts. Those are the allegations.

¶ 12     MR. PENNEY:  The allegations, Your Honour, are substantially correct. There's a little mix-up I think about the ads, but it's not material. With respect to the officers' involvement, Ms K. doesn't have a recollection of the officers being as uncooperative as indicated in the synopsis, but certainly it's admitted that she was running a bawdy house there at the material time.

¶ 13     THE COURT:  All right, I don't — the officers conduct isn't in issue here.

¶ 14     MR. PENNEY:  No, it's not an issue, but ...

¶ 15     THE COURT:  Yes, I'm satisfied ...

¶ 16     MR. PENNEY:  ... those are the facts, and ...

¶ 17     THE COURT:  I'm satisfied then she should be found guilty of the offence as alleged, yes.

¶ 18     MR. PENNEY:  Everybody tells me the same thing, Your Honour.

¶ 19     THE COURT:  Which? Oh, about the officers?

¶ 20     MR. PENNEY:  About the officers.

¶ 21     THE COURT:  The synopsis is generally deficient, is that ...

¶ 22     MR. PENNEY:  Very — generally, yes, ample evidence. Very thorough investigation in all these cases. I'm showing my friend, Your Honour, a receipt for $2,000 to Streetlight Support Services. Streetlight, Your Honour, may be aware, is connected with the diversion program. I don't know if it's in place in this court or not, but certainly downtown it's a program that's set up to help get mainly street prostitutes off the street, assisting them with their resumés, getting jobs, and so on. And, as a demonstration of her remorse, Ms K. wanted to make a donation to this organization to help people who are in the situation she was in because she appreciates the difficulty that many of these people have getting out of the business, and in her case she had many things in her favour. But even then it was difficult. I'm prepared to make my submissions first, Your Honour.

¶ 23     THE COURT:  Is there a record here?

¶ 24     MS WARD:  There is an old record ...

¶ 25     MR. PENNEY:  There's an old unrelated record, Your Honour.

¶ 26     MS WARD:  1981 she had a theft, and received a fine for that.

¶ 27     THE COURT:  Thanks. Yes, tell me about her, please.

¶ 28     MR. PENNEY:  Okay, Your Honour. I can start by indicating that I ask Your Honour to consider granting not only a discharge, but an absolute discharge. And there are a number of reasons why I'm doing that.

¶ 29     MS K., Your Honour, is 40 years of age. She lives alone is my understanding. She works in the real estate industry now, Your Honour. Has been — has had her broker's licence for a long period of time. She works for a real estate company, and she's working mainly with one of their complexes in Concord. And she's been gainfully employed there for the past six to eight months. This charge has been outstanding, Your Honour, for a period of approximately ten months.

¶ 30     Your Honour, the reason I'm asking for a discharge, Your Honour, is follows:  She spent two days in custody. Certainly I can demonstrate it's in her interest, but Your Honour, of course, has to consider as well whether it's not contrary to the public interest to grant her a discharge. She spent two days in custody, Your Honour's entitled to take into account, in terms of the deterrent effect upon hers — upon her and in people in her situation. She's been remorseful, Your Honour, from the beginning. She was cooperative at the time.

¶ 31     Your Honour, if she had pled — and in terms of whether it should be absolute or conditional, there are a number of reasons that I want to put before Your Honour for indicating that probation's not necessary. In one sense, Your Honour, she's been on probation since June, almost ten months. Because she was released on conditions, and strict conditions, and this was part of what's colloquially referred to by defence counsel as the "web street bust," and almost everybody were released on the same conditions; that they not work in the adult entertainment industry at all, and that they not advertise for that purpose, effectively it took away her means of livelihood at the time. Now, of course, she was running a bawdy house, that's criminal. But there are legal ways of earning an income in the sex trade, but that was taken away from her.

¶ 32     In hindsight, Your Honour, I can indicate that she now sees her arrest as a blessing in disguise. At the time she didn't see it as a blessing, but she does now, because it forced her to re-examine what she's doing with her life. And at around this time, Your Honour, she was trying to get out of the trade. She had just completed a securities commissions course, and hadn't secured a job yet. But as soon as she was charged here she took it upon herself to find work again in the real estate industry, and she was successful in doing that.

¶ 33     Your Honour, her first court appearance was on the 24th of June in courtroom number one. If she had come into court that day and had pled guilty and had received 12 months probation, it would have been with the expectation that she would get on with her life and find gainful employment in areas outside the sex trade. So, in one sense, Your Honour, she's accomplished all those things on her own without the assistance of a probation officer.

¶ 34     More importantly, Your Honour, her real estate licence was … and I've discussed quite openly with MS Kastner and Your Honour during the pre-trial .. her real estate licence was up for renewal in January of 1998, a couple of months ago. The application is still pending. Now, the board has told her informally, and I haven't been able to get more specific information, that the application is still pending, and they're waiting to see what is the result of Your Honour's sentence today.

¶ 35     And I don't mean to twist Your Honour's arm with this fact, but they essentially told her that if she gets anything but an absolute discharge, there's going to be a lot of trouble with her continuing to work in the real estate industry, and they may not renew the application. I wasn't able to get anything more formal than that, and I suspect it's because they don't want to have their hands tied. Whether it's an absolute discharge, or a conditional discharge or a suspended sentence, they don't want to be bound either way on what they do, in terms of what ...

¶ 36     THE COURT:  Well, it ...

¶ 37     MR. PENNEY:  ... they might do.

¶ 38     THE COURT:  ... might depend on the wording of the statute. And if the wording of the statute relates to a — or, the Rules relate to a conviction, then I don't know why there would be a difference between an absolute and a conditional discharge?

¶ 39     MR. PENNEY:  Well, I suspect, Your Honour, it's because, as it is with lawyers, the conviction itself can be misconduct. But you don't need a conviction, or you don't even need a finding of guilt to have misconduct. Lawyers can be ...

¶ 40     THE COURT:  No ...

¶ 41     MR. PENNEY:  ... disciplined ...

¶ 42     THE COURT:  ... fair enough.

¶ 43     MR. PENNEY:  ... for conduct becoming.

¶ 44     THE COURT:  No, fair enough ...

¶ 45     MR. PENNEY:  So, in ...

¶ 46     THE COURT:  ... but ...

¶ 47     MR. PENNEY:  ... her case I think the problem is if there's a probationary order, although my friend may be only asking, so that there's a simple condition that she not work in the sex trade, I think they may look upon that as saying, well, Your Honour's saying that this person needs monitoring on an ongoing basis. And keep in mind as well, Your Honour, that there is an old record that doesn't affect her licence now because it is so old. But, again, when they sit down to reconsider everything they have to consider everything in its totality, you know, consider the fact that she's on probation now or is convicted or whatever, and the fact that ...

¶ 48     THE COURT:  I can't help but think if I were the real estate, if I were addressing that, the issue would be the fact of the plea of guilty to the offence and not whether it's an absolute or conditional discharge that would impact on how I would feel about this particular person and her — in other words, if she — if I were satisfied that she offered an explanation as to why she was doing it, and why I would be satisfied that she would no longer be doing it, I don't know that I would care if it were an absolute ...

¶ 49     MR. PENNEY:  Yes.

¶ 51     THE COURT:  ... or a conditional discharge. I mean that would — it seems to me the issue isn't whether it's absolute or conditional, but the issue, rather, is their perception of who she is as a person having regard to the nature of the offence.

¶ 51     MR. PENNEY:  I agree, Your Honour. And I — and that's the reason I'm arguing for no probation because, Your Honour, she's 40 years of age, she knows right from wrong. She knows why she got into the business in the first place. It was to make money. She was experiencing — she's going to speak on her own behalf very briefly after I speak, Your Honour — but she was having difficulties. Her father had died. And the best way to describe it, she was in a rut in her life and took an easy way out to make some money, and got caught.

¶ 52     And she didn't enjoy her work. I haven't met anyone in the industry that has. They go into it to make some money. And now she's out. And she doesn't need a probation officer, Your Honour, telling her "Well, this is wrong, and you should be doing this, and you should be doing that," because she's accomplished all those things.

¶ 53     THE COURT:  That's not why I would make it — give her a conditional discharge as opposed to an absolute charge. The purpose of a conditional discharge in her instance would be rather to reinforce for a period of time the concern that — in effect upping the ante for non-compliance. That's all.

¶ 54     MR. PENNEY:  Well, it's ...

¶ 55     THE COURT:  Now, I mean ...

¶ 56     MR. PENNEY:  ... my — that ...

¶ 57     THE COURT:  ... you — what I have, quite frankly, at this point is a woman who has complied with a recognizance and hasn't, as far as I'm aware, and I'm perfectly prepared to accept, that she's complied with the terms of the recognizance, but the terms of the recognizance are quite restricted. And then to say at this point, well, we need nothing more, I'd have to have a high comfort level that ...

¶ 58     MR. PENNEY:  Yes.

¶ 59     THE COURT:  ... that's where we're at.

¶ 60     MR. PENNEY:  Well, and I'm submitting to Your Honour this is more than just simple compliance. If she had just gone off this and had gone on a public purse for this period of time, then certainly she would be entitled to be — Your Honour would take that into account in terms of assessing her good conduct. But she's done more than that. She's secured gainful employment. She's used some of those earnings to help people in exactly her situation. And she's been gainfully employed for approximately eight months. And she became employed in a very short period of time. And her age, as well, Your Honour, because she's older, it's my submission she doesn't need someone to assist her.

¶ 61     And it's my submission, Your Honour, that if it's simply a matter of upping the ante, regardless of what Your Honour does, I mean that's going to be over head all the time. She's explained to me she never realized, you know, all the bad things that could have occurred getting into this. It's not as if everyone thinks about getting caught and all that. She gets into it to make some quick money for all the wrong reasons. But she's moving on with her life, Your Honour, for all the right reasons.

¶ 63     And it's my submission she doesn't need the sword of Damocles, so to speak, hanging over her head for the next 12 months, or six months, or whatever, to reinforce what's happening here because she's had to live with the stress and anxiety of this whole matter for the last ten months. And, in particular, since January because they told her, "Look, we're not making a decision now. We're going to wait until the sentencing hearing to see what Her Honour does with you."

¶ 64     And I realize Your Honour may impose a conditional discharge to reinforce the seriousness of it and to up the ante if she does get involved, but I don't think it's an inappropriate inference for a lay person to say, "Well, if you're getting probation, that's an indication by the court that you need monitoring, you need continuing monitoring". It says right there in the probation order, report to probation immediately, and thereafter as required, or thereafter as Your Honour may specify.

¶ 65     I don't think I can assist Your Honour any further with respect to that. I mean the consequences, from her point of view are quite serious, and she's acknowledging her guilt. With Your Honour's permission, I'm going to let her say a few words ...

¶ 65     THE COURT:  Sure.

¶ 66     MR. PENNEY:  ... on her own behalf, please.

¶ 67     THE COURT:  Absolutely.

¶ 68     MR. PENNEY:  Thank you, Your Honour.

¶ 69      THE COURT:  Do you want her in the witness box, or do you want ...

¶ 70     MS WARD:  Oh, it doesn't matter.

¶ 71     THE COURT:  You speak there then. That's fine.

¶ 72     MS K.:  Your Honour, I'd like to take this opportunity to personally apologize. I hope I'm not going to start to cry. I'm really sorry.

¶ 73     MS WARD:  If she wants to hand that in. It looks like she's reading something.

¶ 74     MS K.:  No, it's okay. It's really important that I say this. Your Honour, I'd like to take this opportunity to personally apologize for my behaviour. I am truly very, very sorry for everything, Your Honour. I realize I've made mistakes, and I've been trying to change my life, and I have changed my life. Since I was arrested approximately ten months ago, Your Honour, I've been working full time in the real estate industry using my real estate licence selling new homes. Together with my real estate licence I also possess my real estate broker's licence, which I've had for over ten years. For the last two years I've been studying to obtain my securities licence in the stock brokerage industry. I'm very afraid the Real Estate Board will not renew my licence. My licence was recently up for renewal on January 10th of this year. And my application is being reviewed. Your Honour, it was very embarrassing for me, but I had to tell the board to make the Real Estate Board aware of my charge and my intention to plead guilty, and they told me, Your Honour, that they would not process my application until they see the outcome of my sentence. They told me on an informal basis, Your Honour, that I will have a lot of trouble becoming reinstated with my real estate licence, if I do not obtain an absolute discharge. On a more personal level, Your Honour, I know it's no excuse, but I've had a tragedy in my life several years ago. My father was killed. And I lost control of my life. But since being charged I have been gaining control once again. In many ways, Your Honour, I want you to know that this charge has been a wake-up call for me, and I also want Your Honour to know that I've answered the call. Your Honour, I know I've made some mistakes. I know why I got into trouble. And, more importantly, I won't be getting into trouble again. Your Honour, I have been gainfully employed in the real estate industry for the last approximately seven, eight months. I've been working full time about six days a week. I've been able to earn a living, Your Honour. And, as Your Honour can see, I've been able to use some of my earnings to help others who are in a situation that I was in. Your Honour, I'm getting my life back on track. I'm asking for your sympathy and understanding. I know my life is in your hands, Your Honour, and I will not disappoint you.

¶ 75     THE COURT:  Thank you. Ma'am.

¶ 76     MS WARD:  I'll leave the matter up to Your Honour.

¶ 77     THE COURT:  All right, stand up, ma'am.

¶ 78     There are some interesting features to this particular case. First of all, Ms K., you are a woman who has many more resources than most women that we see in this court faced with this type of offence. Now, on the one hand side, of course, in sentencing I suppose that is mitigating in the sense that it gives the court a higher comfort level about whether or not you are likely to repeat. In other words, knowing that you have other ways of earning an income and a good living in supporting yourself makes me believe that, having gone through this experience, you are less likely, or very unlikely to wind up resuming your previous lifestyle or life.

¶ 79     Having said that, on the other hand side, it is aggravating in the sense that you had many more other ways of supporting yourself. Many, many of the women that we see here in these types of offences, you look at them and realize that one of the reasons that they are on the street is that they do not have the choices, or any choices, and you had choices. I appreciate that your father was killed. I do not — how was he killed? I do not understand that.

¶ 80     MS K.:  My family lives in Calgary, and it was on — it was the day after Father's Day, and my brother and mother were outside in front of the house doing some gardening, and my brother, G*****, he had a motorcycle, and my dad was — when he was younger, he used to drive a motorcycle. And every once in awhile he would take the motorcycle out.

¶ 81     THE COURT:  He was in a car accident?

¶ 82     MS K.:  Yes. But he took the motorcycle and he went past the house, and he just went for a little bit of a spin. And G***** and mom were outside in front of the house. And dad, you know, drove by the house, and he came back, and he didn't have his helmet on. And then, you know, they were doing a few more things and then dad looks at mom and Geoffery and they said he said "I think I'm going to go for another spin." And Geoffery said to dad, you know, "Make sure you put your helmet on." And dad said, "Okay." So, he went, you know, down — because they lived kind of on a hill — went down, came back. Mom and Geoffery saw him pass the house. There were no other cars, there were no pedestrians, it wasn't raining, snowing, nothing. Three — just three houses past our house they saw him. All of a sudden he just swerved, and he went right into a light pole, and he was gone.

¶ 83     THE COURT:  Well, that is certainly a sad and tragic story —

¶ 84     MS K.:  Yes.

¶ 85     THE COURT:  ... but, you know, the reality for all — every one of us, unfortunately, is that almost all of us will have to deal with the death of our parents because most — almost all of us outlive our parents. That is reality. And we all are going to have to cope — I have had the great fortune of having — not having to, and hope I do not have to face that for a long time, but certainly it is inevitable that the vast majority of us will have to cope with the death of a parent. And having said that, it does not really — at some point, you know, that is something we all have to get past. That is part of growing up and becoming a person is learning how to get past those things in some kind of, you know, way.

¶ 86     Now, in mitigation you have made a charitable donation, you have acknowledged responsibility. In the normal course, in cases of this nature, when sentencing we look for a fine, and you, in effect, paid that fine. In addition, in mitigation, although you are — you have pled guilty to the offence of keeping a common bawdy house, in terms of the range of situations this offence covers, this is at the low end of the range since the concern that we have in many of these cases is people victimizing other people. And the — there is no evidence before the court that anyone was involved in this but yourself.

¶ 87     So, there is no evidence that you were victimizing anyone else. And if there was, I assure you if there was even the slightest suggestion in here that there were other people that you were exploiting in order to pursue this, the court would not even contemplate a discharge at all. But since it would appear that the only person that I am aware of was involved was yourself, and the only person you were exploiting was yourself, I feel that the court has more leeway in terms of this sentence than they might have in another type of case.

¶ 88     Having said that, I an satisfied that you have taken some very positive steps and turned your life around. Certainly, it would be in your interest to grant a discharge. I would certainly start with the possibility of a discharge, and the only question in my mind was whether or not to be absolute or conditional.

¶ 89     Having said all of that, given all of the mitigating circumstances, including the charitable donation of $2,000.00, the plea of guilty, the fact that no one was involved in this but yourself, the acknowledgement of sincere remorse, the fact that you have gone on with your life and have moved forward in some very positive ways, the court is satisfied that we must consider in terms of the public interest the disposition that would allow you to pursue your life, and as opposed to a disposition that would hamper that. Because the best guarantee we have, at this point, that you will not repeat is that we allow you to move forward with your life.

¶ 90     So, I am satisfied, under all the circumstances, that it would not be contrary to the public interest to grant you an absolute discharge, and I am going to grant you an absolute discharge. Thank you.

¶ 91     MR. PENNEY:  Thank you, Your Honour.

¶ 92     THE COURT:  Good luck to you, ma'am, and good day.

¶ 93     MS K.:  Thank you very much.

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