WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Date: March 16, 2017

Court File No.: Brampton 14-013823, 14-014898, 15-008021, 15-005517

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

N.A.

Before: Justice Paul F. Monahan

Reasons for Judgment

Trial Heard on: July 6, 7 and 8, 2016; December 14, 15 and 16, 2016; February 10, 2017

Reasons for Judgment Released: March 16, 2017

Counsel:

• D. Allison — counsel for the Crown
• M. Worsoff — counsel for the defendant N.A.

MONAHAN J.:

Introduction

[1] N.A. was arraigned before me on a nine-count information containing four counts of assault against G.S., contrary to s. 266 of the Criminal Code of Canada (the "Code") with one alleged to have occurred within a period of 14 days last, past and ending on or about October 31, 2014, two assaults alleged to have occurred on or about October 26, 2014 and a further assault alleged to have occurred on or about October 31, 2014; two counts of recruiting, holding, concealing G.S. who offers to provide sexual services for consideration or who exercises control, direction or influence over the movements of G.S., alleged to have occurred within a period of 20 days last, past and ending on or about October 31, 2014, contrary to s. 286.3(1); an offence under s. 286.2(1) for having allegedly obtained a financial or material benefit knowing that it was obtained directly or indirectly from the commission under an offence under s. 286.1(1), alleged to have occurred within a period of 120 days last, past and ending on or about October 31, 2014; and a charge of human trafficking contrary to s. 279.01(1); and a charge of having received a financial benefit in connection with an offence under s. 279.01(1) contrary to s. 279.02, both of which offences are alleged to have occurred within a period of 120 days last, past and ending on or about October 31, 2014.

[2] The trial was held on July 7 and 8, December 14, 15 and 16, 2016 and February 10, 2017.

[3] During final argument, the Crown indicated that it was seeking a conviction only in respect to one of the assault charges, namely the one alleged to have occurred on or about October 31, 2014; and the Crown was not proceeding with the offences under ss. 286.3(1) and 286.2(1) because those provisions in the Code were not in force as of the time of the alleged events. The Crown continued to pursue the human trafficking charges under ss. 279.01 and 279.02.

[4] Accordingly, the Court must determine whether the Crown has proved beyond a reasonable doubt the assault charge alleged to have occurred on October 31, 2014 and the human trafficking charges.

Evidence

[5] The principal witness for the Crown was G.S. but it is important to outline how her evidence was adduced before the Court. She testified at trial on July 8, 2016 and again on December 14, 15 and 16, 2016. On December 15, 2016, for oral reasons given at that time, I granted permission to the Crown to cross-examine G.S. pursuant to s. 9(2) of the Canada Evidence Act, R.S.C. 1985, Chapter C-5 as I determined that there were material inconsistencies between her trial testimony and the information she provided to police in two videotaped statements, one dated November 5, 2014 and the second dated November 9, 2014 (the "November 2014 statements").

[6] The Crown then brought a KGB application to admit the November 2014 statements for the truth of their contents. On the KGB voir dire, the videos of the November 2014 statements were taken to form part of the record on the voir dire (the Court, having watched the video statements during the trial proper evidence of G.S. when the Crown sought unsuccessfully to refresh her memory). On the KGB voir dire, the Crown also called police officers Claire Martin, Tracie Curtis and Wayne Parkins who had various interactions with G.S., as well as the father of G.S., G.J., and the stepmother of G.S., I.R.

[7] For oral reasons provided on December 16, 2016, I allowed the Crown's KGB application and admitted the November 2014 statements into evidence for the truth of their contents on the basis that they met the necessity and reliability requirements for a KGB application and their probative value exceeded their prejudicial effect. I applied the law under R. v. B (KG), 1993, 1 SCR 740 and R. v. Taylor (2015), 2015 ONCA 448, 325 C.C.C. (3d) 413 (Ont.C.A.). Of course, in determining that the reliability requirement was met, I determined only that the statements met the requirements for threshold reliability – not ultimate reliability.

[8] After my ruling on the KGB application, the DVDs of the November 2014 statements were marked as exhibits and admitted into evidence for the truth of their contents together with the transcripts of those statements. It was also agreed between the Crown and the defence that all evidence taken on the KGB application and the s. 9(2) application would form part of the evidence on the trial proper.

[9] I will outline G.S.'s evidence below but suffice it to say at this stage that the Crown submits that the information she gave to police in her November 2014 statements meets the requirements not only for threshold reliability but also ultimate reliability and, together with the other evidence, establishes both the October 31, 2014 assault charge and the human trafficking charges beyond a reasonable doubt. For its part, the defence submits that the Court cannot rely on G.S.'s November 2014 statements to convict N.A. given her contradictory evidence at trial. In any event, even taking the November 2014 statements at their highest, the defence submits that they do not establish the human trafficking charges or the assault charge beyond a reasonable doubt.

[10] The defence called only one witness, D.C. Her testimony was brief: she testified that she was a friend of N.A.'s and said she had been a friend of G.S.'s. She said that she was present when G.S. allegedly assaulted N.A. when he was driving a car apparently sometime in the fall of 2014. I note that D.C. was permitted to testify notwithstanding that there was an exclusion of witnesses order and she had sat in the courtroom for much of the Crown's case including significant portions of G.S.'s evidence.

The November 2014 Statements of G.S.

[11] As indicated above, G.S. provided two statements: one on November 5 and one on November 9, 2014. The November 9 statement was a sworn statement while the November 5 statement was not sworn although she indicated in it that she was intending to tell the truth. Both statements were videotaped at a police station. They comprise almost five hours of videotaped statements which have been transcribed into approximately 200 pages.

[12] G.S. was 21 years of age during the time of the alleged events giving rise to the charges against N.A. which relate to the time period from the beginning of July 2014 to the end of October 2014.

[13] The November 2014 statements may be briefly summarized as follows: G.S.'s mother died in 2012 and she started taking cocaine and became addicted to it sometime thereafter and prior to her meeting N.A. She met N.A. in December 2013 or January 2014 when she began buying cocaine from him. She got to know him better in May 2014 when they began to talk more to one another. He told her she was "pretty" and he suggested to her that she should consider working at a strip club as a dancer and he told her that she could make a lot of money doing so. She could give him some of her money and he could double it for her and soon she would have a condominium and a new car. She understood this to mean that she would be investing in his drug trafficking business. She was reluctant at first but she thought about it and she later approached him and told him that she would like to start dancing. He helped her register at a club called Solid Gold in Burlington on or about July 2, 2014 by taking her there after which she started dancing. On her first night she made $265 and he wanted $165 of it and she gave it to him. By the third week, she said he was taking all of the money she was earning from dancing and going through her stuff to see if she was hiding any money. It is apparent from what she said later in the November 2014 statements that she did not give him all of her money. It is more accurate to say that the essence of her November 2014 statements was that she gave him the majority of the money she earned.

[14] He would drive her to and from the various clubs that she worked at in Burlington, Guelph, London and Mississauga, Ontario although he did not do so when he was away in Albania in August 2014. Further, in mid-October 2014 when her car broke down on occasion she had someone else drive her to and from the clubs although N.A. also continued to drive her during some of this time period using another vehicle.

[15] Their relationship included some intimate consensual sexual relations which occurred approximately four times from July to October 2014.

[16] An incident occurred in late July or early August on which there was no evidence of N.A.'s direct involvement. G.S. had two drinks and felt as if she had been drugged and thought she had been "sold" by N.A. There were two other people around (another dancer and her "pimp"). This led her to phone her father and stepmother who in turn called police and came to get her. She returned home briefly.

[17] In or about early August 2014, N.A. travelled to Albania for approximately one month. G.S. did not wish to live at home and N.A. made arrangements for her to live with friends of his in a condominium at Burnhamthorpe and Mavis in the City of Mississauga. The friends' names were D and S. While N.A. was away she continued to work in strip clubs and she gave the money to S who kept it in a box. She could take money from it but she had to account for it. N.A. told her that S was holding the money for her because N.A. didn't want her to spend it.

[18] In late August/early September G.S. was in contact with N.A. when he was in Albania. They discussed the possibility of her working at a spa and he encouraged her to do so saying that she could make so much money. She thought he would be against it but he said he was not against it. As a result, she began working at a spa at the end of August/beginning of September 2014. She got paid to give massages to men which ultimately involved masturbating the men to the point of ejaculation. N.A. returned to Canada in early September after G.S. had already worked three or four days at the spa. He then began driving her to and from the spa and she gave him the money she earned there. During the month of September 2014 she rented a condominium using cash. She got some of the money that S had been holding for her and she took it, put it in her purse and used it to pay the rent for the condo. She also sent $700 to N.A. in Albania through Money Mart as he told her that he needed money.

[19] At the beginning of October 2014, N.A. ultimately determined after about four or five weeks' time at the spa that she was not making enough money there and he said to her that she should quit and go back to full-time strip dancing which she did. At about this time, she and N.A. went to London, Ontario for a week and stayed with a friend of N.A.'s. While there, she worked at strip clubs "almost every single day". He would drive her to the strip clubs and she would work from 2 pm to 2 am.

[20] In early October 2014, after they were back in the Mississauga area from London, Ontario, they lived in hotels which were ultimately paid for by G.S. out of her earnings. He would tell her she should be up by 9 am; he would drop her off at 11:30 am so she could start work at 12 pm and he would pick her up at 2 am. She would say she did not want to work this much and that he was her boyfriend, not her pimp, and he should not be telling her when to go to work. He responded that if "you want me to act like a pimp, I'll act like a pimp" which she understood as a threat to beat her up. It would appear that G.S. was saying in the November 2014 statements that the "pimp" comment was made the last week of October 2014 (see p. 94 of her November 2014 statement). She said in the November 2014 statements that "looking back now he was acting like a pimp the whole time".

[21] As of the time of N.A.'s birthday on October 17, 2014, her car needed new brakes and N.A. started driving his friend D.C.'s car. The week of October 20, 2014, G.S. got herself to and from the strip club but N.A. would tell her to meet him at a hotel afterwards and he would come there and she surmised that he was taking money from her wallet (as the money would not be there) and at other times he would just ask her for it and she would just give it to him because there would be a fight if she did not and she was scared of him. She said he "scares the hell out of me" and she told him many times "you scare the fuck out of me". It would set him off if she asked him a "stupid question"; or asked him about her money that he had; or her not wanting to go to work. He would tell her that she should not be scared of him. He would tell her that she "should just listen and be loyal" and then "maybe I wouldn't be scary to you".

[22] She explained that an incident of violence occurred in approximately the 2 to 3 weeks before the November 5, 2014 statement, when a friend of N.A.'s (named Z) was driving the car and N.A. was in the front passenger seat and G.S. was sitting in the backseat behind him. One interpretation of her November 5, 2014 statement is that this assault occurred on or about Wednesday, October 29, 2014 (see pages 72-73 of the November 5, 2014 transcript) and on another interpretation of it she does not remember the precise day that it happened, just that it occurred 2 to 3 weeks before the November 5, 2014 statement (see page 82). N.A. and Z were driving her to work at one of the strip clubs. N.A. began to berate her over the possibility that she was hiding money. He told her to stop playing "childish games" and he grabbed her hair and smashed her face down onto the middle console causing her mouth to bleed. They stopped at Panera Bread so she could clean the blood off of herself. Up until this point in time, the physical violence by N.A. had been "just like a push, shove or punch here and there".

[23] The same day as the above incident, N.A. picked her up at the club after work and the incident described above. They were in D.C.'s car (said to be Z's girlfriend) and Z was driving and D.C. was in the backseat and N.A. was in the front passenger seat. They were giving a ride to another woman who is a friend of G.S.'s. G.S. passed out on her friend. They were going to drop G.S. off alone at a hotel and she did not want to waste her money on a hotel and wanted to be dropped off at her car. This led to N.A. grabbing G.S.'s hair and "wailing on her head" and pushing her out of the car in front of Tim Horton's. N.A. came back later and took her to a hotel and apologized.

[24] On October 30, 2014, N.A. was in the strip club that she was working at and she only made $250 that night and he was "pissed" as he thought that she was not working hard enough. She tried to hug him and he told her that he was "strapped" meaning that he was saying that he was carrying a gun.

[25] On October 31, 2014, she said a further assault occurred. It occurred in a vehicle which N.A. was driving. There was an argument over how much money she had made the night before ($250) and how much he was going to get from it. He wanted $200 and she did not want to give it to him. She got out of the car and walked away. He came back an hour later and she was in the car with him again. An argument ensued. He grabbed her hair with one hand and he punched her in the head with the other at least five times. He referred to her as a "stupid dumb bitch" and told her she was going to regret talking to other men. He said "you should be kissing my feet right now". The argument was over some dispute about her talking to other men and her asking him about other women and some alleged failure by her to assist him in some unrelated court proceeding against him. This assault also involved ramming her head against the middle console.

[26] Right after the October 31, 2014 assault described above, N.A. drove with G.S. and they picked up his friend Z. N.A. said to Z in the presence of G.S. "stupid dumb bitch thinks she can talk to other guys". They drove to a mechanic shop. Z and N.A. got out of the car. G.S. walked away by pretending to be dealing with something to do with her phone. She called two different friends (and another friend of N.A.'s) and made arrangements for one of her friends to come and get her. She was afraid that Z and N.A. would find her. She stayed at a girlfriend's house for two nights (Friday and Saturday, November 1 and 2, 2014). Her parents came over on November 2 to try to persuade her to come home.

[27] She stayed at a different girlfriend's house on November 2. Her eye was swollen and she was sleeping a lot. She was concerned that she had a concussion and she sought medical treatment. She went to Credit Valley Hospital on November 2 but it was going to take too long to get a CT scan and an X-ray, so she left. She then went to her own doctor on November 3, 2014.

[28] At about this same time, she spoke to her parents and asked if she could come home and they said she could but told her she had to talk to the police.

[29] On or about November 3 2014, N.A. messaged her and she spoke to him the next day (November 4). She had N.A. on the speakerphone with her stepmother present. She said she told him she was leaving the country and he said "no, no, no". He said you are going to give me $5,000 within 10 days and that if he did not get it there would be "consequences".

[30] They would often discuss money and N.A. did not think that she was making enough. N.A. took the majority of the money that she made during the period from July to October 2014. She estimated that she gave him about $10,000. He would ask her for the money and she would give it to him. She feared for her safety if she did not give him the money. He would make statements to her that she better "pray to God" that she was not hiding money from him which she understood to be a threat to beat her up if she hid money.

[31] He encouraged her to wake up early and told her that she should get to work and that she should be working in the strip club from 12 p.m. to 2 a.m. He would say "go to work and make me happy".

[32] She expressed concern at the outset of the November 2014 statements that N.A. could hurt a lot of people in her life. She speculated that her father could be shot in the grocery store.

[33] He repeatedly told her not to do "extras" at the strip clubs, meaning that she should not provide sexual services to men at the strip club separate and apart from dancing. She gave conflicting evidence in the November 2014 statements as to whether he knew about everything she was doing at the clubs including lap dances involving men being sexually stimulated.

[34] She did not consider that she had to work while he was away in Albania. As a separate point, he told her at some point in time (which time is not clear in the statements) that if she was not with him that she could not work at a strip club. If she would go home (and leave him), she would no longer be able work in the business.

G.S.'s Evidence at Trial

[35] G.S.'s evidence was substantially different than the content of the November 2014 statements. Her evidence at trial came about as follows. The trial was scheduled to start on July 6, 2016. On the morning of July 6, 2016, G.S. was transported to the courthouse by the police (Officers Parkins and Curtis). These officers testified that her demeanor on the morning of July 6 was friendly and cooperative. The trial was scheduled to start on July 6, 2016 but no judge was available to hear the case until towards the end of that day. When a judge was available, N.A. indicated that he was considering a change of his counsel, a change which he ultimately chose not to make. For these reasons, the trial did not start on July 6.

[36] Officer Curtis saw a shift in the mood of G.S. in the afternoon of July 6. Officer Curtis said she could see "turmoil occurring". Officer Parkins said she was "withdrawn". "Other people" showed up at court who were with her.

[37] On the morning of July 7, 2016, G.S. did not want a ride to Court from the police. She attended Court with someone who she characterized as an "old friend" whose name was "L". She acknowledged in her trial testimony that L knew N.A. G.S. would not speak to the Crown or the police on the morning of July 7 and she indicated that she had a lawyer. The matter did not proceed on July 7 as G.S. wished to consult with her lawyer which she did. G.S. testified on July 8, 2016. An affidavit she swore on July 8, 2016 was later introduced into evidence at trial on December 16, 2016.

[38] G.S. acknowledged in her trial testimony that it had been stated by someone indirectly to her (by someone whose name she did not know) that she had "ratted out" friends of N.A. in her statements to police.

[39] G.S.'s trial evidence on July 8, 2016 which continued in December 2016 was essentially as follows: she acknowledged knowing N.A. in much the same way as was outlined in the November 2014 statements save and except that on July 8, 2016 she initially said that she had started stripping in clubs back in 2012 and had met him at that time. By the time of her December 2016 trial testimony, she moved off the position that she had met N.A. in 2012 and agreed that she had met him in May 2014 and that the main relationship between them occurred from July 2014 to the end of October 2014. This was also the timeline contained in her affidavit.

[40] G.S. said that she never discussed with N.A. how much money he thought she should be making. She did not feel scared or threatened by him and the only time she gave him money was to pay for gas. She said that she did not give him money for her having worked as a dancer or at the spa and all the money she gave him was for cocaine and for him helping to drive her and gas money. She had no idea how much money she had given him. Her trial evidence was full of "I don't knows" and "I don't remembers". Her evidence at trial was that the content of the November 2014 statements was not true because she had been "over exaggerating" because she said that she was high on drugs, specifically cocaine, at the time of the November 2014 statements. She also said that she felt jealousy towards N.A., thinking perhaps that he had another girlfriend and that had caused her to be angry towards him.

[41] She stated a number of times in her trial testimony that although she knew charges against N.A. could come out of her statements to the police "I did not know it was as serious as you guys charged him". She also said "like he treated me well and he doesn't deserve the charges that he has like I didn't know it was going to end up like this."

[42] As concerns the events of October 31, 2014 and the alleged assault on that day she made various points in her evidence at trial. She said that she had been really rude with him that day and she had "disrespected him" and that it had turned into a physical fight where she had laid her hands on him first and he had pushed her back and she ended up with a concussion. She said she did not remember what had happened on October 31, 2014 and that it was "all a blur".

[43] In cross-examination by defence counsel, she said that her eye was bruised on October 31 and that this was caused by "both of us getting physical with each other". She also said she could not recall an instance when she was assaulted by N.A. where she didn't touch him first.

[44] Also in cross-examination by defence counsel, she acknowledged saying in the November 2014 statements that there was assaultive behaviour when two other women were present and she believed she recalled it and then said "I don't remember how it started. I'm sure that I said some words and we both got physical" and then she said "I think I started it."

[45] She indicated that her memory of 2014 in July 2016 was better than her memory at the time of the November 2014 statements and that she could not remember the answers she gave on the November 2014 statements even after having watched the video.

[46] When she testified in July 2016, she did not remember the name of N.A.'s friend who she had stayed with in August 2014 but later in her testimony on December 16, 2016 she said that "S took care of me" when N.A. was in Albania.

[47] She testified that N.A. cared about her wellbeing and health and did not want to sell drugs to her.

[48] She confirmed the incident at the end of July/early August 2014 (not involving N.A.) where she thought that she had been drugged.

[49] Her affidavit of July 8, 2016 which was marked as an exhibit at trial provided similar information to the above and included the statements that the decision to work at the spa and various the adult entertainment clubs was her idea and not anyone else's; that she was not forced or tricked into working at these establishments; that she was suffering from a severe drug addiction at the time she worked there and at the time of the November 2014 statements; that the things she had said in her statements to police regarding N.A. were incorrect and inaccurate due to the consumption of drugs; she advised she had jealousy and anger towards him; at no time did she give N.A. money for her work as a dancer or employee at the spa; the only money she gave to him was for cocaine and for his help in driving her to and from work; that he was against her doing extras; and that he had helped her out by helping her find a place to live when she was kicked out of her home.

Brief Overview of the Other Witnesses

G.J.J.

[50] G.S.'s brother G.J.J. testified. His testimony was brief. He said that he had seen G.S. and N.A. with a guy named Z during the summer of 2014. He also testified that he saw her again sometime after October 2014 and at that time she had a bruised face and marks on her face and her demeanour was scared and upset. He could not recall precisely when he saw her.

H.R.

[51] H.R. testified that she met G.S. in September 2014. She drove her to a strip club in Guelph two or three times and also drove her to the spa three or four times. She said that G.S.'s car had been impounded in Guelph and she helped her get it out. She ended up permitting G.S. to park her car at H.R. underground parking garage. At the end of September after picking her up at the spa, they agreed upon a "code red" understanding between them which was that if G.S. had a problem she could somehow indicate a code red to H.R. and she would come and assist her. Immediately upon setting up the code red G.S. used it and when H.R. saw her she had red marks on her face. She was holding her head and indicating that her head hurt.

[52] H.R. also testified to seeing her at her parent's home "maybe" in October 2014 when the police had come to take as statement from G.S. and H.R. (and others). G.S. appeared shaken up at that time but she saw no injuries on her. It would appear that H.R. placed the meeting with police at her parent's house just over a week after the code red incident.

I.R.

[53] G.S.'s stepmother, I.R., testified that she had been a stepmother to G.S. for many years. G.S. had moved out in July 2014 after I.R. and G.S.'s father gave her an ultimatum to abide by the rules of the house. They knew that she had been stripping and taking drugs. They received a call from her in early August in the middle of the night. She was screaming. Her father called the police and they went to meet her near Square One. She was hysterical, paranoid and yelling at people in the streets. I.R. thought that she was high. She ended up coming home for a few nights but then left again. She said that at the end of August she also came back again and stayed for a week or two and she apparently had no place to live. It was I.R.'s understanding that she continued to be on drugs and was stripping.

[54] I.R. said that in the fall of 2014 G.S. came back again and at this point G.S. went to the police. At this same time, I.R. observed on G.S. that her eye was puffed up and I.R. believed that she had been beat up.

[55] At about the same time that G.S. went to police to give her statement, I.R. was also present when G.S. spoke to a man on the speakerphone. The man was demanding his "fucking money" and wanted $5000. He was telling her he wanted it within two weeks. He told her that he knew where she lived and the kind of car that she drove.

[56] I.R. did not believe that G.S. was under the influence of drugs when she went to the police station to give her statements in November 2014.

G.J.

[57] G.J., G.S.'s father, also testified. He testified that as of July 2014 she was living somewhere near Square One – he did not know where. He said that he and his wife did not approve of her lifestyle and she left because of that. He was aware that sometime in the late summer or early fall she had called and said that she was locked out of her apartment. She was hysterical. It was the middle of the night. He saw bruises on her arm. She came home with them at that time and stayed one or two nights and then left again.

[58] She came back again in November. He did not see any injuries on her at that time that he could recollect. He testified it was not a condition that she speak to police at that time although he thought it was the right thing to do.

Police Witnesses

[59] I will not review the evidence of the police officers beyond what I have mentioned above other than to say that the police witnesses testified that G.S. was cooperative with them until the afternoon of July 6 2016 and that as far as the police officers who dealt with her at the time of the November 2014 statements they did not consider that she was under the influence of drugs at that time. I note as well that Constable Parkins indicated that he saw G.S. at the Locomotion strip club after the November 2014 statements and she appeared to be working there. He was there on other police business.

D.C.

[60] The defence called only one witness, D.C. Her testimony was brief: she testified that she was a friend of N.A.'s and G.S. and that she was present when G.S. allegedly assaulted N.A. when he was driving a car apparently sometime in the fall of 2014. I note that D.C. was permitted to testify notwithstanding that there was an exclusion of witnesses order and she had sat in the courtroom for much of the Crown's case including significant portions of G.S.'s evidence.

Medical Evidence

[61] G.S.'s medical records for her consultation with Dr. Chen were in early November 2014 and were entered into evidence. The medical records showed that on November 3 2014 she saw Dr. Chen. According to the records had been sick for two days with headaches and body chills and nasal congestion with a slight cough. The records also disclosed that she suffered a head injury on the weekend with trauma to the left side of her head and left cheek swelling. The doctor observed in the records that she had neck pain and that the left side of her head was tender and there was swelling with a tender neck as well. Dr. Chen ordered a CT scan and the CT scan dated November 7 was normal with no concussion detected.

Law

[62] The relevant statutory provisions in force as of the time of the allegations in this case are as follows:

Trafficking in persons

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

(a) to imprisonment for life if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or

(b) to imprisonment for a term of not more than 14 years in any other case.

(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid.

Material Benefit

279.02 (1) Everyone who receives a financial or other material benefit, knowing that it is results from the commission of an offence under subsection 279.01(1) or 279.011(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

Exploitation

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

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

(a) used or threatened to use force or another form of coercion;

(b) used deception; or

(c) abused a position of trust, power or authority.

(3) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed.

[63] The leading decision on the exploitation provisions in the Criminal Code is the decision on the Ontario Court of Appeal in R. v. A.A. (2015), 2015 ONCA 558, 327 CCC (3d) 377. That case involved allegations of the exploitation of a person under the age of 18 (see s. 279.011(1)). Nevertheless, the observations in that case concerning exploitation apply to the case at bar. The Court of Appeal observed in A.A. that the object of the exploitation provisions was to capture a wide range of intentional conduct that had at its purpose the exploitation of vulnerable persons (see A.A. at para. 88).

[64] In order to make out a charge under s. 279.01, the Crown must prove beyond a reasonable doubt that the accused:

(i) recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person; and

(ii) the foregoing conduct must be "for the purpose of exploiting them or facilitating their exploitation".

[Note that "a person exploits another when they cause the person to provide or offer to provide, labour or a service by engaging in conduct that 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 offered to provide the labour or service" (see ss. 279.01(1) and ss. 279.04(1); emphasis added)].

[65] In determining whether one person has exploited another, the Court can consider, among other things, whether the accused used or threaten to use force or another form of coercion, used deception, or abused a position of the trust, power or authority (see s. 279.04(2)). The safety aspect of s. 279.04 is not confined to safety from physical harm but also covers safety from psychological harm (see AA at para. 71).

[66] Although the Crown must establish that the accused person acted for the purpose of exploiting the complainant or facilitating their exploitation, the Crown does not need to prove that actual exploitation occurred (see A.A., para. 86). "Both exploitation and facilitation … relate to an accused's state of mind, his or her purpose in engaging in the prohibited conduct. Said another way, exploitation and safety relate to an accused's purpose and not to the actual consequences of the accused's behaviour for the victim." (AA at para 86; emphasis added; italics in the original).

[67] The fault element of s. 279.01 has two elements: (i) the intent to do anything that satisfies the conduct requirement; and (ii) the purpose for which the conduct is undertaken "extends beyond the intentional conduct that is the actus reus of the offence to what could be described as the object an accused seeks to attain, or the reason for which the conduct is done or the result intended" (see A.A. para. 82, italics in original).

[68] In cases where there is actual exploitation, the inference that the accused's purpose was to exploit the complainant will usually be straightforward (see A.A., para. 87). Where there is no actual exploitation, the definition of exploitation in s. 279.04 will help inform the court's analysis as to whether the accused acted with the required purpose (see A.A., para. 87).

[69] Through the use of the words in section 279.04 "could reasonably be expected to cause the other person to believe that their safety … would be threatened if they fail to provide … the labour or service", the question of whether this aspect of the human trafficking charge is made out is an objective one. In AA, the trial judge found that complainant, who had been dancing in strip clubs and engaging in acts of prostitution with the encouragement of the accused in that case, had not engaged in dancing because she felt that her physical safety was threatened. The complainant in that case "never related any violence to dancing or not dancing" (see quotation from the trial judgment in the Court of Appeal's decision in AA at para 75). For this and other reasons relating to the subjective beliefs of the complainant, the trial judge found that exploitation charge was not made out. The Court of Appeal in AA overturned the trial judge and ordered a new trial. The Court of Appeal said that even though the complainant in that case "did not link the assault to her choice to dance, this does not mean that an objective view of the evidence would not have permitted such a conclusion". The Court of Appeal also noted that complainant's safety did not have to be actually be threatened. The subjective views of the complainant should be considered in the exploitation analysis but ultimately, this aspect of the exploitation issue is an objective one (see AA at paras. 74-77).

[70] The provisions of s. 279.02 make it an offence to receive a financial or other material benefit knowing it was obtained, directly or indirectly, from the commission of an offence under s. 279.01.

[71] Notwithstanding that N.A. did not testify, the test in R v. W. (D.), [1991] 1 S.C.R. 742 at para. 28 applies in this case. The WD analysis applies wherever there is conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case. The conflicting evidence may be believed, or, even if not believed, may leave the Court in a state a reasonable doubt as to the accused's guilt and if so the Court must acquit (see Sopinka, Lederman, Bryant and Fuerst, The Law of Evidence in Canada (fourth edition) at para. 5.99 citing R. v. D.(B.) (2011), 2011 ONCA 51, 266 C. C. C. (3rd) 197 (Ont. C.A.). See also the Honourable David Watt, Watt's Manual of Criminal Jury Instructions (second edition) at page 271 as concerns the second and third branch of the W.D. test.

[72] I note that the WD test is as follows:

(1) First, if you believe the accused, you must acquit;

(2) Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit; and

(3) Third, even if you are not left with a reasonable doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt of the guilt of the accused.

[73] In applying the foregoing framework, it is important to recognize the following further points:

(1) The assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested WD. What matters is that the substance of the WD instruction be respected. In a judge alone case, the Court does not need to consider the evidence in any particular order such as the evidence of the defendant first and then the rest of the evidence: R. v. Minuskin (2003), 68 O.R. (3d) 577 (C.A.). The key point that must be followed is that the trial judge must decide whether the Crown has proved the guilt of the accused beyond a reasonable doubt: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 23; and

(2) Reasonable doubt may survive a finding that a complainant is credible: R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 47 leave to appeal to S.C.C. dismissed, [2007] S.C.C.A. No. 69. See also, R. v. J.W. 2014 ONCA 322 at para. 26. A similar point flows from the comments of the Ontario Court of Appeal in R. v. Strong (2001), O.J. No. 1362 (C.A.) at para 5 where the Court said

"The question is not simply whether the complainant's evidence was reliable, but rather, when considered in the context of the totality of the evidence whether it established guilt beyond a reasonable doubt"

(3) Where there are significant inconsistencies or contradictions in a principal Crown witness' testimony, the trier of fact must carefully consider the evidence before making a finding of guilt: R. v. Johnson, 2011 ONSC 195, [2011] O.J. 317 (Sup. Ct.) at para. 125 (Hill J.).

(4) Corroboration and confirmatory evidence is not required to prove allegations in a criminal case. Corroboration evidence is evidence that directly supports allegations of fact in issue. Confirmatory evidence is evidence that confirms important aspects of a witness's testimony and can strengthen a trier of fact's belief in the veracity of a witness even though it does not provide direct support of an allegation of a fact in issue: Law Society of Upper Canada v. Neinstein (2010), 99 O.R. (3rd) 509 (C.A.) at paras 69-73 (per Doherty J.A. for the Court).

[74] As indicated above, for separate oral reasons, I admitted the November 2014 statements for the truth of their contents on the basis that they met the requirements of necessity, threshold reliability and their probative value exceeded their prejudicial effect. The Court must still determine whether, and to what extent, the November 2014 statements will be relied upon or not as the case may be. This question of ultimate reliability of the November 2014 statements must be determined in the context of the evidence as a whole: Sopinka, Lederman, Bryant and Fuerst, The Law of Evidence in Canada (fourth edition) at paras. 6.117 and 6.131 and I will consider this question further below.

Analysis

[75] As outlined in the introduction to this matter, in final argument, the Crown narrowed the issues by seeking a conviction only with respect to the alleged assault on or about October 31, 2014 and with respect to the human trafficking charges under ss. 279.01 and 279.02. Accordingly, the issues in the case are as follows:

Issue 1 – Has the Crown proved beyond a reasonable doubt that N.A. assaulted G.S. on or about October 31, 2014?

Issue 2 – Has the Crown proved beyond a reasonable doubt that N.A. committed an offence contrary to s. 279.01 and, if so, did he receive material benefit in this regard, contrary to s. 279.02?

[76] I will consider each issue in turn.

Issue 1 – Has the Crown proved beyond a reasonable doubt that N.A. assaulted G.S. on or about October 31, 2014?

[77] As indicated, the Crown is only seeking a finding of guilt on the assault alleged to have taken place on October 31, 2014. Nevertheless, the Crown continues to submit, in reference to the human trafficking charges and as context for the October 31 assault charge, that there were assaults beyond the alleged October 31, 2014 assault as set out in the November 2014 statements.

[78] The assault and human trafficking charges can only be determined once the Court resolves the contested factual issues. The principal contested factual issues relate to the differences between G.S.'s November 2014 statements and her trial evidence. The Crown submits that the November 2014 statements reflect a truthful account by G.S. of her relationship with N.A. and that the Court should reject her trial evidence as untruthful. I recognize that it is not necessarily the case that the Court needs to accept one or the other. The Court can accept or reject any part of her November 2014 statements or her trial evidence. The question of ultimate reliability or not as the case may be must turn on an examination of the November 2014 statements in the context of the evidence as a whole, including G.S.'s trial evidence and the evidence of the other witnesses. I have approached the contested factual issues in this manner and I have used the WD framework in resolving the competing factual issues.

[79] The defence submits that reasonable doubt arises from the conflict between G.S.'s testimony and the November 2014 statements and that even accepting the November 2014 statements as truthful, none of the charges are proved beyond a reasonable doubt.

[80] G.S.'s November 2014 statements are a description of her relationship with N.A. from the time she met him in late 2013/early 2014 to the time of the statements with particular emphasis on the July to October 2014 period. Her trial evidence sets out a different description of the same subject matter, with much less detail. While her November 2014 statements and trial evidence cover a wide range of subject areas, the principal differences between the two statements (the November 2014 statements and her trial evidence), broadly speaking, largely revolve around three subject areas:

(i) The subject of influence. In the November 2014 statements, N.A. plays a direct role in influencing where and when G.S. will work. She says "looking back now he was acting like a pimp the whole time". In her trial testimony, he is her boyfriend who helps her out by giving her rides to and from work. She makes her own work decisions free of his influence;

(ii) The subject of assaultive behaviour. In the November 2014 statements, he assaults and threatens her, particularly over the money she earns at the strip clubs and the fact that she is not to hide it from him. He "scares the hell" out of her. In her trial testimony, she is vague (it is "all a blur") but indicates that he assaults her but she assaults him first and she "disrespects" him. She is not scared of him. She says "like he treated me well and he doesn't deserve the charges that he has like I didn't know it was going to end up like this."

(iii) The subject of money. In the November 2014 statements, he gets the majority of her money earned at the strip clubs and the spa, with at least some of the flow of money being connected to threats and assaults by him. In her trial testimony, she only gives him money for gas and drugs.

[81] I have considered the November 2014 statements and G.S.'s trial evidence in the context of the evidence as a whole. I have been cautious with her evidence because in the November 2014 statements she gave certain evidence and in her trial testimony she disavowed those statements and told a different version of events. For reasons which I will explain in more detail below, in the context of the evidence as a whole, I have concluded that the substance of the November 2014 statements, including in all three subject areas (influence, assaultive behaviour and money), does accurately set out G.S.'s truthful account of her relationship with N.A. and constitutes what actually transpired between them. On the other hand, while G.S.'s trial evidence is accurate in some limited respects including that she worked in strip clubs and a spa in the July to October 2014 timeframe and that she had some form of relationship with N.A. during that time, it is inaccurate, incomplete and untruthful in many other respects including in all three subject areas described above (influence, assaultive behaviour and money).

[82] My conclusion on the ultimate reliability of the November 2014 statements means that the October 31, 2014 assault (and other assaults) is proved although I will discuss that point in more detail below. It does not necessarily mean the human trafficking charges are proved against N.A. as this will require a consideration of the legal requirements under the Code for such charges and a more detailed consideration of what happened when.

[83] I should also say that my finding of ultimate reliability of the November 2014 statements is, as indicated above, a finding that the substance of these statements is correct. It does not necessarily mean that every word of the 200 pages of the transcript of the November 2014 statements is a proven fact. There was clearly some hearsay evidence within the November 2014 statements and the Court does not accept that evidence as true. Further, in other cases, the precise timing and context of statements about various events recorded in the statements is unclear or conflicting and where this occurs I will explain my findings further below. This will become particularly important in considering the human trafficking charges.

[84] The reasons why the Court accepts the substance of the November 2014 statements as ultimately reliable and rejects G.S.'s trial evidence as largely inaccurate, incomplete and untruthful include the following:

1. The November 2014 statements were made at a time when the events of July to October 2014 were fresh in G.S.'s mind. While there is some lack of clarity with respect to some aspects of these statements, she is clearly cooperative, coherent and detailed in those statements. The November 9, 2014 statement is a sworn statement which adopts the truth of the November 5, 2014 statement. As I said at the time I allowed the Crown's KGB application, G.S. knew of the importance of telling the truth in the November 2014 statements. The defence has had the opportunity to cross-examine her on the November 2014 statements and her trial testimony. The November 2014 statements were given before allegations that she had "ratted" people out arose. She shows no hesitation in answering questions in those statements. Her trial testimony that she had a better memory of 2014 in 2016, defies common sense and is not borne out by her trial testimony which was often vague, contradictory and full of purported memory lapses.

2. What is the reason that G.S. gives at trial for her trial evidence that the November 2014 statements are wrong? She attempted to explain the November 2014 statements as being incorrect because she said that she was under the influence of drugs at the time she gave them. In her affidavit, she says that "This [drugs] caused me to say things that were incorrect and inaccurate regarding [N.A.]". This is the major reason that G.S. gave in her trial testimony explaining why she says the November 2014 statements are wrong. She repeated it multiple times at trial. The trouble with this explanation is that it has no merit and even the defence does not submit otherwise. I have watched the 5 hours of the videotaped November 2014 statements and I have carefully considered them and it is my view that she was not under any significant influence of drugs at the time of those statements, and this is supported by the evidence of the police officers who dealt with her at the time as well as her father and stepmother. She was coherent and logical throughout the statements. Indeed, in final argument, even defence counsel submitted that G.S. did not appear to be "high" at the time of the November 2014 statements. The fact that G.S. repeatedly put forward the alleged influence of drugs as to why the November 2014 statements were wrong, and all the evidence is overwhelmingly to the contrary, strongly supports my conclusion that her trial evidence was untrue and the November 2014 statements are truthful.

3. G.S.'s suggestion that she was angry at N.A. and therefore made up parts of the November 2014 statements is also untrue in my view. Based on a consideration of the evidence as a whole, it is clear to the Court that she was trying to tell the truth during the time of the November 2014 statements. She may have been angry at him, but she was not making it up.

4. I recognize that G.S. said in the November 2014 statements that her parents said that she had to talk to the police when she asked to come home in early November 2014. At trial, G.S. tried to suggest that her parents essentially forced her to go to police and that this was another reason why the November 2014 statements were wrong. Based on the evidence of her parents, I accept that her parents thought that going to police was the right thing to do and they encouraged her to do so but it was not a condition of her going home. Even if it was a "condition" in her mind or otherwise, it was most certainly not a condition that she implicate N.A. in wrongdoing or make up a story and I do not consider this point has any merit as concerns an explanation for why the November 2014 statements were allegedly wrong.

5. The evidence of G.S.'s stepmother confirms significant portions of the November 2014 statements including that G.S. had a swollen eye as appeared to I.R. in late October or early November; that G.S. had called at the end of July or early August and was hysterical and the police were called at that time; and that there was a call with G.S. and a man in early November who demanded $5,000 from G.S. and threatened her with consequences. Confirmation of the swollen eye in late October/early November and the hysterical call at the end of July/early August do not, by themselves, support the accuracy of the November 2014 statements as these points were covered in her trial testimony as well. However, I.R.'s confirmatory evidence of the early November phone call with the man demanding $5,000 (his "fucking money") and his statement that he knew where she lived and the kind of car that she drove is particularly significant as this was not dealt with expressly in G.S.'s trial testimony. G.S. was clearly speaking to N.A. at that time (as disclosed in the November 2014 statements). I.R.'s evidence about this call is consistent with G.S.'s version of the same speaker phone call mentioned in the November 2014 statements. I.R.'s evidence as to the man's [which must be N.A.] behaviour in this call is also generally confirmatory of G.S.'s evidence in the November 2014 statements on the subject of the flow of money (i.e. she must pay him), the influence he had tried to exert on her and his threatening nature.

6. As mentioned above, G.S.'s testimony at trial came across as evasive, tentative and inconsistent. Throughout her testimony she was full of memory lapses despite her assertion that her memory of 2014 was better in 2016 than it was in November 2014. She appeared to be giving calculated evidence designed to stay away from any suggestion of wrongdoing by N.A.

7. In particular, when one is telling a fictitious story, it is difficult to keep one's story straight. That was the nature of G.S.'s trial evidence. To give an example, in July 2016 she initially testified at trial that the relationship with N.A. started in 2012 and that she started dancing at that time. It was not just a slip; she repeated the 2012 point a number of times in her initial trial testimony. This was clearly incorrect and appeared to the Court to be an attempt by her to deliberately undermine the November 2014 statements. By December 2016, when she continued her testimony again after a lengthy adjournment in the trial, she moved off of the point that these events had occurred back in 2012 and said it was 2014. As another example, she initially testified at trial in July 2016 that she did not remember who she had stayed with in August 2014 but then later in her December 2016 trial testimony she was very clear that it was S. In my view, this was not simply a case of having her memory refreshed by the videos (she said her memory was not so refreshed) – it was an example of her attempt to obfuscate and attempt to undermine the November 2014 statements in her trial testimony. Another example of a feigned memory lapse in her trial evidence occurred when she said that she did not remember the name of the person who came with her to Court on July 7, 2016 even though she described him as an "old friend". His name was L and she knew it. She acknowledged knowing her old friend's name when it was put to her.

8. Other parts of the November 2014 statements are confirmed by other evidence. In particular, the medical records disclose that G.S. did seek medical attention and show some injuries to her head on or about November 3, 2014. The records of November 3, 2014 show that the doctor observed tenderness in her head to palpation; swelling and a tender neck and the doctor ordered a CT scan. I recognize that the CT scan medical records show no abnormality on November 7, 2014. This does not undermine the records of November 3, 2014 and overall I consider that the medical records provide significant confirmation for G.S.'s evidence in the November 2014 statements that she was injured on October 31. They do not prove that N.A. assaulted her. Having said that, I note that even in her trial testimony, there is no dispute that G.S. became injured on October 31, 2014 as a result of some interaction with N.A. Indeed, in my view the only reason G.S. acknowledged any assaultive behaviour by N.A. in her trial testimony was because she knew she could not depart from the medical records.

9. G.J.J. confirms that he saw G.S. sometime after October 2014 and he saw injuries on her face and was scared and upset. Similar to the evidence of her stepmother, while this does not necessarily mean that she had been assaulted by N.A., it provides some confirmation from G.S.'s evidence in the November 2014 statements and that she was in abusive relationship and was assaulted in October 2014 by someone and the only person who G.S. pointed to at the time of the November 2014 statements or in her trial evidence who might potentially have assaulted her was N.A.;

10. Although some aspects of the November 2014 statements are difficult to follow as to when certain events happened, by and large they represent a cohesive and coherent explanation as to the events of July to October of 2014. Notwithstanding the length of the statements, while there are some conflicts that arise in the statements which I will discuss further below, the statements are largely internally consistent and make sense.

[85] By reason of the points I have made above and the specific points below on the subject of various alleged assaults, I believe G.S.'s evidence in the November 2014 statements that she was assaulted by N.A. on or about October 31, 2014. The violence happened because of an argument over how much money she had made the night before ($250) and how much he was going to get from it. He wanted $200 and she did not want to give it to him. He grabbed her hair with one hand and he punched her in the head with the other at least five times. He also rammed her head against the middle console in the car. He referred to her as a "stupid dumb bitch" and told her she was going to regret talking to other men. He said "you should be kissing my feet right now".

[86] What is the conflicting evidence on this point? Even G.S.'s trial evidence standing alone, confirms that N.A. seriously assaulted her that day. When she first testified at trial in July 2016, she said that her eye was bruised on October 31, 2014 because of "both of us getting physical with one another". This same point was repeated in cross-examination in response to questioning by defence counsel. She also made the more general point in cross that she was generally assaultive towards him whenever he was assaultive towards her. She also said in chief that it was "all a blur" referring to the October 31, 2014 incident. In re-examination she said that they both got physical that day and she got a concussion and a bruise.

[87] The defence suggested that G.S.'s trial evidence in effect meant that there was some form of a "consent fight" or alternatively self-defence by N.A. Even if I accepted G.S.'s trial evidence on the October 31 assault as complete and truthful, which I do not, the suggestion that G.S. engaged in a consent fight with N.A. has no merit. There is no evidence that G.S. expressly or impliedly agreed or consented to a fight. The question of consent fights is dealt with in R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339 at para. 19.

[88] There is conflicting evidence in that both G.S.'s father and from H.R. did not remember seeing any injuries on her in November 2014 but it clear from the medical records and I.R.'s testimony and G.S.'s evidence in the November 2014 statements and her trial evidence that she was injured at this time. Her father and H.R. have simple forgotten in my view or they did not see the injuries, but they were there.

[89] It is also clear to me that N.A. assaulted G.S. a number of times in the days leading up to October 31 just as G.S. said he did. While the Crown does not seek a finding on these assaults, they are important for the human trafficking charges and I will address them below.

[90] One of the other assaults I accept occurred was the incident where N.A. and his friend Z were driving her to work at one of the strip clubs. N.A. began to berate her over the possibility that she was hiding money. He told her to stop playing "childish games" and he grabbed her hair and smashed her face down onto the middle console causing her mouth to bleed. They stopped at Panera Bread so she could clean the blood off of herself. Up until this point in time, the physical violence by N.A. had been "just like a push, shove or punch here and there".

[91] One interpretation of her November 5, 2014 statement is that this assault occurred on or about Wednesday, October 29, 2014 (see pages 72-81 of the November 5, 2014 transcript) and on another interpretation of it she does not remember the precise day that it happened, just that it occurred 2 to 3 weeks before the November 5, 2014 statement (see page 82). I cannot determine with precision when it happened although I am satisfied beyond a reasonable doubt that it happened in about the last ten days of October 2014. I will accept that it happened on or about October 29 as this is the interpretation most favourable to N.A. as it suggests that most serious violence did not occur until almost the end of the relationship.

[92] On the same day as the above incident (which I will assume was October 29, 2014), N.A. picked her up at the club after work and the incident described above. This time they were in D.C.'s car (said to be Z's girlfriend) and Z was driving and D.C. was in the backseat and N.A. was in the front passenger seat. They were giving a ride to another woman who is a friend of G.S.'s. G.S. passed out on her friend. They were going to drop G.S. off alone at a hotel and she did not want to waste her money on a hotel and wanted to be dropped off at her car. This led to N.A. grabbing G.S.'s hair and "wailing on her head" and pushing her out of the car in front of Tim Horton's. N.A. came back later and took her to a hotel and apologized.

[93] D.C.'s evidence was apparently, or at least potentially, directed at this same incident. She said that G.S. assaulted N.A. and that he did not act violently towards G.S. who she said was severely under the influence of drugs. I found D.C.'s evidence to be unreliable. She did not come to give impartial or truthful evidence. She testified to being a friend of N.A.'s and having been a friend of G.S. at one time. Notwithstanding that there was an exclusion of witnesses order, she appears to have sat in the Court and heard most of G.S.'s evidence. The Court, with the consent of the Crown, permitted her to give evidence in any event. By her own admission she was severely under the influence of drugs and alcohol at the time of the events she testified to in the fall of 2014 and whatever incident she may or may not have observed does not undermine in any way my view of the evidence of G.S. that she was assaulted by N.A. in the presence of D.C. as described above and that this occurred the same day as G.S. was assaulted on the way to work.

[94] I am aware that H.R. testified to picking her up at the spa and later that night a so-called "code red" occurring between them and that H.R. saw injuries on G.S. She said this happened in late September. I believe that she could be mistaken when she says it was late September 2014 when this happened. H.R. also said that just over a week later she was at G.S.'s parent's home and the police came to take statements from G.S. and H.R. and others. This would be no earlier than on or about November 5, 2014. Accordingly, I believe H.R. saw injuries on G.S. in connection with the code red incident, and that these would have been caused by N.A., but I am not satisfied it is a different incident than the ones described above in last week of October. It likely was a different incident on an earlier date than in the last week of October 2014 but I am not satisfied beyond a reasonable doubt in this regard.

[95] I also fully accept that from at least sometime prior to the assaults described above in late October 2014, N.A. said to her "you want me to act like a pimp, I'll act like a pimp" which she understood, reasonably in my view, as a threat to beat her up if she did not come home with what he thought was enough money from dancing. I also consider the pimp comment was made no later than the last week of October 2014 (see p. 94 of the November 9, 2014 statement). He would make statements to her that she better "pray to God" that she was not hiding money from him which she understood to be a threat to beat her up if she hid money. The November 2014 statements are not clear as to precisely when the pray to god statement was made but it is clear that it was made sometime before the assaults of late October 2014.

[96] In arriving at the conclusion that G.S. was assaulted on October 31, 2014 and before as I have indicated above, and received numerous threats to do her physical harm, I have considered the evidence as a whole including whether any conflicting evidence raises a reasonable doubt under the second branch of W.D and whether the Crown has proved the October 31 assault beyond a reasonable doubt as required by the third branch of WD. In my view, there is no reasonable doubt on these facts and I am satisfied that the assaults and threats were made as I have set out and that all of this has been proved beyond a reasonable doubt. While there will only be a finding of guilt on the one October 31, 2014 assault charge, I will consider the other facts that I have found with respect of the other assaults and threats when I consider the human trafficking charges below.

Issue 2 – Has the Crown proved beyond a reasonable doubt that N.A. committed an offence contrary to s. 279.01 and, if so, did he receive material benefit in this regard, contrary to s. 279.02?

[97] By reason of the points mentioned above, it is clear to me that considering the evidence as a whole, the content of her November 2014 statements represent a truthful account of the relationship including as concerns the three various subject areas of G.S.'s evidence namely the subjects of the assaults, influence and money. Her evidence in the November 2014 statements directly relates to the human trafficking charges.

[98] As I have outlined above, there are two primary requirements for an offence under s. 279.01. I will restate them here for ease of reference. In order to make out a charge under s. 279.01, the Crown must prove beyond a reasonable doubt that the accused:

(i) recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person; and

(ii) the foregoing conduct must be "for the purpose of exploiting them or facilitating their exploitation".

[Note that "a person exploits another when they cause the person to provide or offer to provide, labour or a service by engaging in conduct that 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 offered to provide the labour or service". (see ss. 279.01(1) and ss. 279.04(1); emphasis added)]

[99] Also as mentioned earlier, "exploitation and safety relate to an accused's purpose and not to the actual consequences of the accused's behaviour for the victim." (AA at para 86; emphasis added; italics in the original)

[100] Before answering that these questions, it must first be asked what "services" are at issue? The Crown submits it was "sexual services" meaning engaging in sex acts with men at both the strip clubs and the spa. The Crown does not argue that stripping by itself constitutes sexual services. I am not satisfied beyond a reasonable doubt that N.A. knew she was engaged in providing any form of sexual services in the strip clubs. I recognize that there is conflicting evidence on this point in the November 2014 statements. However, it is clear that he told her that he did not want her to provide "extras" at the strip clubs and while it was likely obvious to him that she must have, or may have, been providing some sexual services in the clubs, I am not satisfied beyond a reasonable doubt that he would have known that. He most certainly knew that she was providing sexual services in the spa in September 2014 even though I acknowledge arguably conflicting evidence on this point in the November 2014 statements as well. However, for reasons which I will explain below, I am not satisfied that the human trafficking charge is made out as of September 2014 when she was working at the spa. Nevertheless, I note that any form of services, not just sexual services, can qualify for services under s. 279.01. G.S.'s stripping at the various strip clubs qualifies as services and I have approached the s. 279.01 charge on this basis.

[101] Dealing with the first issue on the human trafficking charge under ss. 279.01(1), it is clear to the Court that it has been been proved beyond a reasonable doubt, based on the November 2014 statements, that from July 2014 to the end of October 2014 N.A. did exercise control, direction or influence over the movements of G.S. He did not physically force her to go to strip clubs and the spa, he did strongly encourage her to do so and played a direct role in causing her to work at the clubs and the spa. This role and influence became more and more pronounced and onerous as the relationship continued. He helped her register at one of the strip clubs in July 2014 by taking her there and he regularly drove her to and from the strip clubs and the spa and took the majority of the money she earned there and at the spa. He encouraged her to work at the spa and when he was not satisfied with the amount of money that she was making there, he told her to stop and devote herself to stripping on a full-time basis which she then did. Thereafter, he immediately took her to London, Ontario where he took her to and from work at various strip clubs. They then returned to the Mississauga area and when her car broke down he got another car and continued to drive her to and from the strip clubs. I recognize that she got rides from others from time to time but this does not detract from my conclusion that he played a significant role in directing and influencing her movements from July 2014 and throughout the relationship. The first component of the s. 279.01 charge is made out.

[102] Turning to the second requirement of the human trafficking charge, did N.A. engage in the foregoing conduct for the purpose of exploiting G.S. or facilitating her exploitation? Was his purpose to cause her to provide the services by engaging in conduct that could reasonably be expected to cause G.S. to believe that her safety would be threatened if she failed to provide the services?

[103] In my view, up until late October 2014, it cannot be said that that it has been proved beyond a reasonable doubt that N.A. acted for the purpose of exploiting G.S. He probably did but I am not satisfied that it has been proved beyond a reasonable doubt that a reasonable person in the position of G.S., up until late October 2014, would consider that their safety would be threatened if they failed to provide the services. I say this for the following reasons. The November 2014 statements are clear that violence was certainly occurring in the relationship by October 29, 2014. However, the November 2014 statements are unclear as to whether violence occurred before October 29, 2014. One reading of her November 2014 statements is that N.A. turned violent with her within about three weeks into the relationship but another reading suggests that the violence did not occur until late October. In my view, on this point N.A. is entitled to the most favourable reading. In my view, the November 2014 statements and other trial evidence do not establish beyond a reasonable doubt that there was violence against G.S. by N.A. until October 29, 2014. To be clear, there likely was violence before this time but I am not satisfied beyond a reasonable doubt in this regard. I recognize that violence is not a requirement of the s. 279.01 charge, but it is certainly is a factor to be considered (see ss. 279.04(2)(a)) and I consider that it is particularly important in this case.

[104] There were serious threats of violence by N.A. against G.S. but I am not satisfied that it has been proved beyond a reasonable doubt that these occurred until sometime in mid to late October (the "pray to god" statement clearly being made before October 27 and the "pimp" statement being made during the week of October 27, 2014 before the violence of October 29, 2014). These statements may well have also been made earlier and likely were but it is unclear in the November 2014 statements in my view.

[105] However, by no later than the last week of October (by on or about the week of October 27, 2014), I am satisfied that all of the requirements for proof of the human trafficking charges under section 279.01 have been established beyond a reasonable doubt. This takes into account the cumulative effect of all of the events leading up to that time. By this point in time and by way of overview only, it is clear beyond a reasonable doubt as follows:

(i) N.A. is playing a significant influence on her movements to and from the strip clubs so that she can work and give him the majority of the money as I have already concluded above. He knew that she was a vulnerable young person (age 21) who had struggled with drug issues;

(ii) By this point in time, he had made statements to her that she better "pray to God" that she was not hiding money from him which she understood, reasonably in my view, to be a threat to beat her up if she hid money;

(iii) By this point in time, he had said to her in connection with when she should go to work, "you want me to act like a pimp, I'll act like a pimp" which she understood, reasonably in my view, as a threat to beat her up if she did not come home with what he thought was enough money from dancing;

(iv) By this point in time, she was scared of violence from him. As she said in the November 2014 statements, he "scares the hell out of me". This was a reasonably held view in my opinion;

(v) On or about October 29, 2014, as he was taking her to work at the strip club in Mississauga, he assaulted her because he thought that she had been hiding money from him which she earned at the strip club. The same day, he picks her up from the strip club and assaults her again;

(vi) On October 30, 2016, he goes to the strip club where she is working and when she tries to hug him he tells her that he is "strapped" meaning carrying a gun. Whether he was or was not carrying a gun is irrelevant. I am also not saying that he would have used a firearm on her. I am simply observing that the fact that he told her he carried a gun would contribute to the reasonable apprehension a reasonable person in G.S.'s position would have of N.A. if they crossed him. He had an aura of violence about him;

(vii) During the last week of October 2014, he continued to demand and receive the majority of her earnings from her work at the strip clubs, as he had always done. He did not get the money she earned on October 30, 2014, which led to the October 31, 2014 violence;

(viii) On October 31, 2014, he assaults her again, this time over her refusal to give him money from her earnings from the strip club from the night before. She has to sneak away from him when he takes a car to the garage. She is afraid that he will find her; and

(ix) On November 3, 2014, they speak by phone. She tells him that she will she is leaving the country and he says "no, no, no". He said you are going to give me $5,000 within 10 days and that if he did not get it there would be "consequences". He says that he knows where she lives and the kind of car she drives. A reasonable person in the circumstances of this case would interpret this conduct as a threat of violence.

[106] By on or about the week of October 27, 2014, I consider that G.S. did herself fear N.A. and felt that her safety was threatened if she stopped dancing. She had to sneak away from him on October 31. She was afraid he would find her. A separate but related point is that she also expressed fear in the police interview of November 5, 2014 that if she told police about what he had done to her, she and her family would be at risk of physical harm. Even if it can be said that G.S. did not personally fear for her safety if she failed to continue to provide the strip club services, a reasonable person in her position would have and this is the point (among others) that must be considered as indicated by the Court of Appeal in AA. By the week of October 27, 2014, N.A. had shown himself to be a parasitic person treating G.S. like a physical asset required to generate him money and "kiss his feet". He had viciously assaulted her in connection with the money she was earning at the strip clubs when he thought she was hiding money from him or otherwise questioning him. He did so in the process of delivering her to the strip club where she was to work and hand him over the bulk of her earnings.

[107] The defence argues that the relationship between N.A. and G.S. was obviously not a good one and was potentially abusive but that it does not meet the requirements for the human trafficking charge. The defence argues that she was free to work or not to work in the strip clubs. Further, while the defence did not put it precisely this way, it could be argued that the violence by N.A. against G.S. was not directed at causing her to work in the strip clubs but was directed at getting the majority of money from her if she chose to work there and that this does not amount to a ss. 279.01 offence. In my view, these arguments are not valid. While it is true that in a narrow sense she exercised some free will in choosing or not to dance, this point needs be understood in context. My reading of the November 2014 statements in the context of and considering the evidence as a whole, is that while G.S. initially chose to dance when the relationship with N.A. first started, by the time the last week of October arrived, she was not free to walk away without putting her safety at risk. The only reasonable inference from the evidence is that she knew this. Even if I am wrong on what she knew, as indicated above, a reasonable person in her position would fear for their safety if the strip club services did not continue. In this regard, I note that there was a direct link between his threats of violence, her dancing and the money. He assaults her while he is taking her to the club where she is to work for him and the assault is fueled by his concern that she is hiding money from him. Further, when G.S. manages to get away from him, he demands more money and implicitly threatens violence if he does not get it. The only reasonable inference to be drawn from the facts is that by the week of October 27, 2014, N.A.'s purpose was to cause G.S. to continue to dance at the strip clubs and to pay him the majority of her earnings and that if she failed to continue to provide the services and give him the money, a reasonable person in the position of G.S. would believe that their safety was threatened and they would be right.

[108] Did N.A. receive a financial or material benefit knowing that it was received from the commission of an offence under s. 279.01(1)? G.S. says in the November 2014 statements that she gave approximately $10,000 to him over a four-month period. Having said that, I have only found that the charge of human trafficking is made out in the last week of October 2014 when she continued to give him money. I would estimate that during this week he would have received from G.S. approximately $600 to $800.

[109] G.S. says in her trial evidence that she did not give him money from her dancing per se; she was just giving him money she owed him for gas and drugs. I have rejected her trial evidence, including this evidence, as untruthful. Her November 2014 statements accurately set out that the money she gave him throughout, including in the last week of October 2014, was not for gas or drug money. Even her trial evidence indicates that she was not buying drugs from him after August. It does not appear that he was working in any legitimate job at the time of the events of this case. He wanted her to work for him and take the bulk of her money from her. He told her that he was taking her money ostensible to "invest" for her. There was no investment. He was using her for money, pure and simple.

[110] In the circumstances, there is no doubt that he received a financial benefit from his offence under s. 279.01. That was why he was undertaking the entire relationship with her from beginning to end, to make money from her work even though I have not found the human trafficking charges made out until the last week of October.

[111] For these reasons, I am satisfied that the s. 279.02 charge is also made out beyond a reasonable doubt.

Conclusion

[112] For the reasons set out above, there will be a finding of guilt on the October 31, 2014 assault and the two related human trafficking charges under ss. 279.01(1) and 279.02(1).

Dated and Released: March 16, 2017

Corrected reasons: Typographical errors corrected and released March 20 and 27, 2017

Justice Paul F. Monahan