ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 16-R2009

DATE: 2018/06/14

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

NADIA NGOTO

Applicant

Jessica Carvell, for the Respondent

Cedric Y.L. Nahum, for the Applicant

HEARD: April 12, 2018

INFORMATION CONTAINED HEREIN CANNOT BE

PUBLISHED, BROADCAST OR TRANSMITTED

PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE

RULING ON APPLICATION TO QUASH COMMITTALS

m. labrosse J.

[1] This is an application by Nadia Ngoto for an order quashing the warrant for committal of Justice J.V. Loignon dated December 20, 2017.

[2] Ms. Ngoto and Amina Hothon Ahmed were jointly charged with human trafficking offences (s. 279.011 of the Criminal Code) and prostitution-related offences (s. 286.3 of the Code) arising out of their contact with the complainants J.F. and M.J. on July 22, 2016. Ms. Ngoto is also charged with uttering a threat to cause bodily harm. A third defendant, Shukri Aden Aden was also charged with sexual offences against both complainants and breaches of recognizance.

[3] At the conclusion of the preliminary inquiry, Ms. Ahmed and Mr. Aden conceded committal. Ms. Ngoto conceded committal on the uttering threat count (count 9 (formerly count 14)) but contested committal on the counts relating to human trafficking (counts 1 to 4 (formerly counts 5 to 8)) and the prostitution-related offences (counts 5 and 6 (formerly counts 9 and 10)). Ms. Ngoto was committed for trial by the preliminary inquiry judge on the human trafficking and prostitution-related counts. The Crown presented a new indictment on January 15, 2018 which resulted in the counts being renumbered. I will now refer to the counts as set out in the January 15, 2018 indictment.

Summary of the Evidence

[4] On July 21, 2016, the complainants J.F. (age 14) and M.J. (age 15), were runaways staying at a hotel in downtown Ottawa. While walking in a park, they met the Applicant, Ms. Ngoto and Ms. Ahmed who were in a car. The Applicant and Ms. Ahmed offered to bring the girls to the casino to party and supply them with fake identification. J.F. said she did not remember which of the two women proposed this idea.

[5] Prior to going to the casino, the two women and two girls returned to the hotel where the girls were staying and Ms. Ahmed invited two men to join them, one of the men being the co-accused Mr. Aden.

[6] Ms. Ahmed gave drugs to both J.F. and M.J. and the girls were told that they should tell the men that they were 19 years of age if asked. M.J. testified that Mr. Aden was pulling her towards him at one point, trying to touch her.

[7] The next morning, the complainants accompanied the two women to run errands and they went to what they believed to be the Applicant’s residence. They were taken to Ms. Ahmed’s apartment, given a room and were offered to take a shower and choose fresh clothing to wear.

[8] M.J. showered and then was told by Ms. Ahmed that pictures would be taken to allow M.J. to make some money. M.J. was directed to remove her top and pictures were taken of her in a tank top. During this time, the Applicant was sitting on the couch using her cell phone. After J.F. showered, she changed into the clothing offered to her and photographs were taken of her. The Applicant was present in the room and instructed J.F. on how to pose. Some of those photographs were later found on the Back Page website as part of an advertisement for sexual services. The account was associated with the cell phone number of Ms. Ahmed.

[9] Following the photographs, the two complainants were told that they would go to a barbecue in Gatineau. When they arrived at the home, there was no barbecue. There were men present including the two men who were at the hotel the previous night. The men were looking at the girls and making them feel uncomfortable. M.J. said she was tired and they were returned to the apartment in Ottawa. Some of the men from the house in Gatineau also returned to the apartment. It was while in Gatineau that the women began to feel uncomfortable. When they returned to Ottawa, they were placed in a bedroom in the apartment and believed that the door had been locked from the outside but they did not try the door.

[10] The complainants had discussions with the two women about how long they could stay with them. Essentially they were told that they could remain as long as they wanted, provided that they behaved and did not “piss them off”. Some of these discussions took place with the Applicant who asked the girls if they wanted to make money followed by a statement that they would go to the casino and have fun.

[11] The complainants also testified that the women told them that they could get them some work and said they had a long night of working ahead of them that night. There was no evidence of the type of work the girls were expected to do.

[12] The girls told the Applicant that they were uncomfortable and voiced their concerns about being forced to have sex. The Applicant told them that she would never make them have sex with anyone they did not want to have sex with.

[13] While in the bedroom, M.J. contacted the police and then the Applicant came into the bedroom and demanded to see the complainants’ cell phones asking who called the police. The Applicant took them down to the lobby of the apartment and assisted the girls to leave out the back door but eventually, the police found the complainants and took them away. While being taken away, the Applicant made a threatening gesture towards the girls.

The Reasons of the Preliminary Inquiry Justice

[14] The preliminary inquiry justice began her reasons by identifying the test for committal as set out United States of America v. Sheppard, 1976 8 (SCC), [1976] SCJ No. 106 and R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. She also identified the limited ability she has to weigh evidence as this is the ultimate function of the trier of fact and instructed herself in the following manner:

Accordingly, I am to examine the evidence and determine whether it is reasonably capable of supporting the inferences proposed, all the while bearing in mind that other inferences may be possible. However, I am not to choose amongst these.

[15] With respect to trafficking in persons (counts 5 through 8), the preliminary inquiry justice identified the elements of the offences under s. 279.011 of the Criminal Code as requiring the Crown to establish conduct, the prohibited group and the purpose and analyzed the applicable caselaw.

[16] After considering the essential elements of the offences under s. 279.011 of the Code, the preliminary inquiry justice made the following statement:

The parties are in agreement that in the eventuality that I find sufficient evidence to commit to trial concerning exercising control, direction, or influence, contrary to section 279.011, then committal should follow in relation to the offences under section 286.3 given that procuring may occur in the same fashion.

[17] To understand this paragraph, one must consider that following the preliminary inquiry, the parties agreed to present written submissions to the preliminary inquiry justice. Para. 48 of the Crown’s written submissions state:

If the court accepts the Crown’s submission with respect to the inferences to be drawn from the evidence with respect to the intent of Ms. Ahmed and Ms. Ngoto, then Ms. Ngoto ought to be committed on counts 9 and 10 as well. At minimum, the evidence supports the inference that she exercised influence over M.J. and J.F.’s behaviour in order to engage them in prostitution.

[18] Para. 100 of the Applicant’s submissions to the preliminary inquiry justice state:

If the Court does not accept that the evidence cited above establishes Ms. Ngoto’s intent to engage the complainants in prostitution, then she ought not to be committed on Counts 9 and 10 as well.

[19] Similarly to the manner in which both Crown and Defence argued committal on the s.286.3 counts in their written submissions, the preliminary inquiry justice did not set out in detail the elements of the procuring offence under s. 286.3 of the Code but did analyze the evidence that related to the recruiting and exercising control of the complainants.

[20] The preliminary inquiry justice completes her decision on committal with the following conclusion:

Based on the evidence above, having found that the accused exercised control or influence over the complainants in relation to section 279.011 and given that the test is materially the same as to that component with respect to the offence under section 286.3, I find that there is some evidence of the offences as charged.

Position of the Parties

[21] The Applicant contends that the preliminary inquiry justice made the following errors in jurisdiction:

(a) that the Applicant was committed to stand trial on counts where there was insufficient evidence on all the essential elements of the offence that could reasonably support an inference of guilt;

(b) that the Applicant was committed to stand trial where the preliminary inquiry justice failed to consider the whole of the evidence; and

(c) that the Applicant was committed to stand trial on two counts (contrary to s. 286.3) despite the fact that no reasons were provided to explain the evidentiary basis for committal.

[22] During submissions for this application, the Applicant advances that she did not concede that committal on the s. 286.3 of the Code counts should follow an order for committal on the offences under s. 279.011. She argued that a failure to demonstrate intent to engage the complainants in prostitution means that there can be no committal on the s.286.3 counts. However, the converse is not true. A committal under s. 279.011 does not necessarily mean a committal under s. 286.3 as the purpose elements of the offences are different.

[23] The Crown answers by highlighting that it is well settled that the scope of review on this type of application is limited to a jurisdictional error. Specifically, any inference that must be drawn must be resolved in favour of the prosecution, even where the inference flows less easily in the Crown’s favour.

[24] On the issue of the s. 286.3 counts, the Crown states that the preliminary inquiry justice was not required to make a duplicitous analysis and states that there was in fact an agreement that the analysis applicable to human trafficking offences would apply with respect to the procuring offences. Regardless, the Crown relies on R. v. Nichols [2005] O.J. No. 3246 at paras 51 to 55 in support of its position that even if the preliminary inquiry justice applied the wrong test for the counts under s. 286.3, the reviewing Court is to examine if there is evidence to support the committal while applying the correct test.

The Law

The Test at the Preliminary Inquiry Stage

[25] The Supreme Court of Canada confirmed in R. v. Arcuri, 2001 SCC 54 that the test for committal at a preliminary inquiry is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. There must be some evidence of each essential element of the offence charged. The preliminary inquiry judge must consider the whole of the evidence, but he or she does not assess credibility or reliability. Rather, the preliminary inquiry judge must commit an accused to trial where there is “admissible evidence which could, if it were believed, result in a conviction”: Arcuri, at para. 21.

[26] The preliminary inquiry judge considers the evidence as a whole, including any exculpatory evidence: Arcuri, at para. 34. However, the preliminary inquiry judge “must engage in a limited weighing exercise in order to determine whether a properly instructed jury could reasonably draw the suggested inferences”: R. v. Slessor, 2007 ONCA 336, at para. 5.

[27] If “the inferences urged by the Crown are within the field of inferences that could reasonably be drawn, the preliminary inquiry judge must commit for trial even if those are not the inferences that the preliminary inquiry judge would draw”: R. v. Hawley, 2012 ONCA 528, at para. 10.

Test on Certiorari

[28] The jurisdiction of the reviewing court to quash the decision of the preliminary inquiry judge is limited. The leading case is R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, where at para. 19, McLachlin C.J. said:

The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari “runs largely to jurisdictional review of surveillance by a superior court of statutory tribunals, the term ‘jurisdiction’ being given its narrow or technical sense”: Skogman v. The Queen, 1984 22 (SCC), [1984] 2 S.C.R. 93, at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”. Skogman, supra, at p. 100 (citing Forsythe v. The Queen, 1980 15 (SCC), [1980] 2 S.C.R. 268).

[29] While the scope of review on Certiorari may be limited, a failure of a preliminary inquiry judge to consider “the whole of the evidence” amounts to jurisdictional error: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 18.

[30] When it is alleged, as here, that the preliminary inquiry judge failed to consider the whole of the evidence, “[w]hile an exhaustive examination of all the evidence is not expected”, there must be some indication that the mandatory requirement of s. 548(1)(b) of the Criminal Code has been complied with: Deschamplain, at para. 21.

Analysis

Insufficient Evidence on Essential Elements

[31] In relation to the human trafficking offences under s. 279.011 of the Code, the Court of Appeal in R. v. A.A., 2015 ONCA 558, provided an in-depth analysis of the essential elements of that offence:

[79] On a straightforward reading of s. 279.011(1), three elements need to be established by the Crown in order for the offence of trafficking of a person under 18 to be made out:

(i) the conduct;

(ii) prohibited group; and

(iii) purpose.

[80] The conduct requirement may be established in several different ways including exercising control, direction or influence over the movements of another person.

[81] The prohibited group requirement is met where the person who is the subject of an accused’s conduct is under 18.

[82] The fault element of the offence consists of two components. First, the intent to do anything that satisfies the conduct requirement in s. 279.011(1). Second, the purpose for which the conduct in relation to a member of the prohibited age group is done. Specifically, s. 279.011(1) requires that the accused act with the purpose of exploiting or facilitating the exploitation of that person. The purpose element in s. 279.011(1) 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.

[83] A plain reading of s. 279.011(1) without any interpretive assistance would support the conclusion that the terms “exploiting” and “exploitation” would bear their normal, natural every day meaning of taking advantage of or using another person for one’s own ends. However, what is meant by “exploiting” and “exploitation” in s. 279.011(1) is informed by s. 279.04, a provision that acts like a definition.

[84] While s. 279.04 defines exploitation in the context of the offence of human trafficking, the fault element in s. 279.011(1) focusses on an accused’s purpose in exercising control, direction or influence over the movements of a person in the proscribed age group. It is of no moment to proof of this ulterior fault element that an accused fails to achieve his purpose.

[85] In other words, no exploitation need actually occur or be facilitated by the accused’s conduct for an accused to be convicted of human trafficking.

[32] It is very clear from the reading of the preliminary inquiry justice’s reasons that she gave full consideration to the essential elements for the offences under s. 279.011 and related the evidence to them. She dealt specifically with the element of conduct in analyzing the evidence on recruiting and the exercising of control, the prohibited group was made out due to the age of the complainants and the exploitative purpose is found in the evidence of what the complainants did while with the Applicant together with the subjective belief of the complainants that they were being exploited.

[33] When dealing with the role of the Applicant in the exploitation, the preliminary inquiry justice considered the evidence relating to the differing roles between the Applicant and Ms. Ahmed. While the evidence of the complainants was not consistent on the role played by the Applicant and Ms. Ahmed, there is certainly some evidence that a reasonably instructed trier of fact could conclude that they were working together. The preliminary inquiry justice referred to the fact that the two women were together with the girls, there was no dispute between them, the Applicant participated in the photographs, the girls discussed working with the Applicant, the Applicant was present in taking the girls to the casino, partying with them, bringing them to Gatineau and to the apartment and finally in intervening when the Applicant found out the police had been called. There is no basis to suggest that there is not at least some evidence on the issue of working together.

[34] With respect to the offence under s. 286.3(2) of the Code as set out in the indictment, the essential elements are:

(i) that the person was under the age of 18;

(ii) that the person was procured; and

(iii) that the purpose of the procurement was to offer or provide sexual services for consideration.

[35] The Court of Appeal for Ontario has considered the definition of “procure” in the context of the previous prostitution-related offence (s. 212(1)(b)) in R. v. B., 2004 36124 (ON CA) as being to “induce” or “persuade”.

[36] In R. v. Alexander, Bell & Nolan, 2016 ONCJ 452 at para. 51, the Court highlights that procuring can be established where “the accused recruited, held, concealed or harboured a person for the purposes of prostitution or ‘exercised control, direction or influence over the movements of a person’ for that purpose”.

[37] As previously stated, the preliminary inquiry justice went over the evidence in detail dealing with the recruiting and the exercising control of the complainants. While the preliminary inquiry justice did not specifically set out the essential elements of the s. 286.3 offence as set out in the indictment and apply them to the evidence, her summary of the relevant evidence demonstrates that there are available inferences that if believed could result in a conviction for procuring or inducing the complainants to offer or provide sexual services for consideration through the Back Pages advertisement and the anticipated night of work.

Failure to consider the whole of the evidence

[38] In arguing that the preliminary inquiry justice failed to consider the whole of the evidence, the Applicant focuses on the failure by the preliminary inquiry justice to consider the exculpatory evidence which distinguishes the role played by the Applicant from the role played by Ms. Ahmed.

[39] The Applicant describes Ms. Ahmed as the one who provided the drugs to the complainants, she took the photographs that ended up on the Back Pages advertisement for sexual services, she brought the men to her house and discussed finding work for the girls. The complainants stated that they did not get the impression that the Applicant was involved in the recruitment scheme.

[40] However, the subjective belief of the complainants is not conclusive on the issue of the involvement of the Applicant. I am of the view that the preliminary inquiry justice properly distinguished between the roles of Ms. Ahmed and the Applicant. The preliminary inquiry justice identified the available inference that the Applicant’s friendlier demeanour served the purpose of gaining the complainant’s trust. The fact that the Applicant told them that they did not have to have sex with anyone that they did not want to have sex with can be seen as an attempt to assuage the concerns of the complainants. It was thus available to the preliminary inquiry justice to conclude that there was some evidence that both the Applicant and Ms. Ahmed acted in concert in their dealings with the complainants.

[41] The Applicant relies on a number of statements made by the complainants which were exculpatory to the Applicant’s involvement but not considered by the preliminary inquiry justice.

[42] While the preliminary inquiry justice is not required to reference every instance in the evidence where the complainants identified the different roles played by Ms. Ahmed and the Applicant, it is clear that the preliminary inquiry justice was alive to those different roles and that in reading her reasons as a whole, she clearly contemplated the Applicant’s role in opposition to the role of Ms. Ahmed.

[43] I am also satisfied that the preliminary inquiry justice also considered exculpatory evidence such as the more active role of Ms. Ahmed and the complainants’ subjective impression of Ms. Ngoto being less involved. The preliminary inquiry justice specifically referred to Ms. Ngoto’s diminished role in comparison to Ms. Ahmed. However, the preliminary inquiry justice highlighted the inferences against Ms. Ngoto and those inferences were properly available to the preliminary inquiry justice to warrant committal.

[44] The preliminary inquiry justice was not required to refer to all the evidence relating to the differing roles played by Ms. Ahmed and the Applicant, I am satisfied that the mandatory requirement of s. 548(1)(b) of the Criminal Code has been complied with. I do not accept the suggestion that the preliminary inquiry justice failed to consider the whole of the evidence.

Insufficient Reasons – Counts 5 and 6

[45] There is no dispute that the preliminary inquiry justice did not specifically address counts 5 and 6 (formerly counts 9 and 10) being the offences under s. 286.3 of the Code. She relied on what appeared to her as being a common position between the Crown and Defence that if there was sufficient evidence to commit to trial on the s. 279.011 counts, then committal should follow under s. 286.3 of the Code.

[46] I am of the view that para. 99 of the Defence submissions on committal which is reproduced above, could easily be seen as being misleading to the preliminary inquiry justice. This is supported by the fact that the Applicant did not provided her own analysis of the elements of the offence under s. 286.3 of the Code. In fact, the Defence’s Submissions on Committal provided no analysis of any differences between s. 279.011 and s. 286.3 of the Code.

[47] In argument during this Application, the Applicant highlighted that in s. 286.3, the purpose is different than for s. 279.011. In s. 279.011, the purpose is for exploiting. In section 286.3, the intent is more specific by being to procure for money. The Defence argues that the evidence of photographs being posted on the internet on Back Pages advertisement does not clearly suggest that the complainants will be providing sexual services for consideration.

[48] I disagree. Firstly, the photographs posted to Back Pages do in my view allow for an inference that in posting the complainants’ photos as part of an advertisement for sexual services, it was to procure or cause the complainants to provide sexual services for consideration. I do not find that the purpose of the advertisement for “big beautiful black women” negates this available inference. The Applicant was present when the photos were being taken, she took no steps to voice an opposition to them and even participated.

[49] Secondly, there was evidence available to the preliminary inquiry justice that the Applicant was involved in having the complainants work. The inference is available that the Applicant would assist in taking the girls to the casino to make money. While one available inference is that they would work or make money at some other location, there is also an available inference that they were being procured or induced to go to the casino to provide sexual services for consideration and thus make money. This would be part of the long night of work referenced by the complainants.

[50] While the preliminary inquiry justice was not presented with any material differences in the application of s. 279.011 and s. 286.3 of the Code, the distinction that the accused procured the complainants to offer sexual services for consideration is found in the evidence of recruiting and exercising control reviewed by the preliminary inquiry justice. Although the preliminary inquiry justice did not specifically refer to the essential elements under s. 286.3, she was alive to the evidence of having the girls work and make money possibly at the casino and using the photographs as part of the offer for sexual services. The Applicant participated with Ms. Ahmed to a certain degree in both of these portions of the evidence although she played a different role.

[51] I therefore adopt the analysis of Durno J. in Nichols in considering that even if the preliminary inquiry justice did not specifically consider the elements of the offence under s. 286.3, at least in part due to the manner in which the parties presented their submissions at preliminary inquiry, I am able to consider those essential elements under s. 286.3 of the Code as set out in the indictment and conclude that there is an evidentiary basis to support the committal.

Conclusion

[52] For the reasons stated above, I find that there was evidence before the preliminary inquiry justice upon which she could, acting judicially, form an opinion that the evidence was sufficient to order the Applicant to stand trial. There was no jurisdictional error and the application for a writ of Certiorari to quash the committals is dismissed.

Justice M. Labrosse

Released: 2018/06/14

COURT FILE NO.: 16-R2009

DATE: 2018/06/14

INFORMATION CONTAINED HEREIN CANNOT BE

PUBLISHED, BROADCAST OR TRANSMITTED

PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

NADIA NGOTO

Applicant

REASONS FOR JUDGMENT

Justice M. Labrosse

Released: 2018/06/14