Court File and Parties

COURT FILE NO.: 17-R1857 DATE: 2019/01/10

ONTARIO SUPERIOR COURT OF JUSTICE

PUBLICATION BAN IN EFFECT UNDER S. 486.4 OF THE CRIMINAL CODE OF CANADA

B E T W E E N:

HER MAJESTY THE QUEEN – and – K.G.A. A.S.A. R.Q.G.

Counsel: Sarah Fountain, for the Crown Michael A. Smith, for K.G.A. Paolo Giancaterino, for A.S.A. Robert Carew, for R.Q.G.

HEARD AT OTTAWA: September 11, 12, 13, 14, 17, 18, 19 and 21, October 5, and November 6, 2018

REASONS FOR JUDGMENT

RYAN BELL J.

A. Overview

[1] On September 18, 2016, P.J. went out to a Vancouver club. It was there that she first met A.S.A. P.J. left the club by herself. Ultimately, she ended up at a condo in downtown Vancouver. It turned out to be the condo where A.S.A., K.G.A. and R.Q.G. were staying. P.J. was attracted to A.S.A. and she stayed the night. The following day, September 19, 2016, the four of them flew to Ottawa. K.G.A. and R.Q.G. flew on one flight; A.S.A. and P.J. were on a later flight.

[2] P.J. remained in Ottawa until October 3, 2016, staying in different hotels for a night or two at a time. By the second day in Ottawa, she was working in the sex trade as an “escort,” doing “outcalls.” On October 2, 2016, P.J. was involved in a fight at a house party. On October 3, 2016, she went to the Ottawa police.

[3] As a result of P.J.’s allegations, K.G.A. and A.S.A. are each charged with:

(i) one count of human trafficking of P.J., contrary to s. 279.01(1) of the Criminal Code;

(ii) one count of receiving a financial or other material benefit, knowing that it was obtained by the commission of an offence under s. 279.01(1), contrary to s. 279.02(1) of the Criminal Code; and

(iii) one count of advertising an offer to provide sexual services for consideration by posting an advertisement on Backpage website, contrary to s. 286.4 of the Criminal Code.

[4] K.G.A. is also charged with criminal harassment of P.J., by engaging in threatening conduct directed at P.J.’s mother, contrary to s. 264(3) of the Criminal Code.

[5] A charge against A.S.A. alleging a breach of the Youth Criminal Justice Act was withdrawn by the Crown at the commencement of trial. A.S.A. also faced charges of criminal harassment and unlawfully pointing a firearm at P.J. Following a motion for a directed verdict, I acquitted A.S.A. on these charges.

[6] R.Q.G. was charged with human trafficking, receiving a material benefit, and advertising an offer to provide sexual services for consideration. Following a motion for a directed verdict, I acquitted R.Q.G. on the receiving a material benefit and advertising charges. The Crown then withdrew the remaining charge – human trafficking – against R.Q.G.

[7] The Crown’s theory is that K.G.A. was P.J.’s pimp and that he exercised control and influence over her for the purpose of exploiting her. Specifically, the Crown alleges that K.G.A. arranged for P.J. to fly to Ottawa from Vancouver, set her up with a cellphone, and started an advertising page for her on Backpage.com. The Crown alleges that K.G.A., through psychological means – deception and coercion – limited P.J. from leaving Ottawa. K.G.A. is alleged to have received money, a place to stay and status, all derived from the trafficking of P.J.

[8] The Crown characterizes A.S.A. as the “lure” for P.J. to come to Ottawa to work in the sex trade. According to the Crown, by participating in this fashion, A.S.A. facilitated the exploitation of P.J. A.S.A. is alleged to have received a place to stay, money and gifts derived from the trafficking of P.J.

[9] P.J. testified for the Crown. The other Crown witnesses were Detective Michel Villeneuve of Ottawa Police Services’ computer forensics unit, Detective Chris Lavergne, and S.H. A number of documents were admitted into evidence including hotel invoices, Backpage ads, phone extraction reports and SMS message extractions.

[10] There were a number of admissions made pursuant to s. 655 of the Criminal Code. Identity is admitted, including that K.G.A. is also known as “G.” and “M.,” A.S.A. is also known as “T.” and “B.T.” and R.Q.G. is also known as “R.” P.J. used the names G., T. and R. throughout her testimony. In summarizing P.J.’s evidence, I have done the same.

[11] As is their right, K.G.A. and A.S.A. chose not to testify at trial. No evidence was called on their behalf. Their position is that the Crown’s evidence does not support its theory and that the Crown has failed to prove beyond a reasonable doubt the offences with which K.G.A. and A.S.A. stand charged.

B. The Evidence

(i) P.J.’s Evidence

(a) P.J. Meets T., G. and R.

[12] In September 2016, P.J. was living in Vancouver. She was 20 years old. As of September 2016, P.J. had worked as an escort for six to seven months in different cities, including Vancouver.

[13] P.J. testified that on the evening she went to the club, she had just ended things with the man she described as “one of my pimps”, but also “kind of like a boyfriend.” She was upset. She took some Xanax and drank some alcohol before she went out. She described herself as being “really intoxicated.”

[14] At the club, P.J. met T. She did not remember if he was by himself or if she had any conversation with him. While she was at the club, P.J. dropped her purse; when she looked down, it was gone. She lost her credit card, her identification, $1,200 in cash and some Xanax.

[15] P.J. left the club by herself. She testified that she had her phone with her when she left. She went to meet up with a friend who was visiting from out of town; however, when she arrived at his hotel, he was asleep. P.J. wanted to continue partying, so she called a number she had saved on her cell phone while she was at the club. At the time, she did not recall whose number it was and she did not know to whom she was speaking. She took a cab to the condo but she could not recall how she paid for it.

[16] On cross-examination, it was put to P.J. that she told the police her phone had been stolen at the club, together with her purse. She testified that her statement to the police about her phone was inaccurate. She conceded that her recollection of the night at the Vancouver club and at the condo is “foggy.”

[17] P.J. testified that outside the condo, she saw G. and spoke to him briefly. On cross-examination, P.J. agreed that she would not have been able to identify the person to whom she spoke as G. because she met only T. at the club.

[18] A few girls were just leaving the condo when P.J. arrived. T. was there, sleeping in the living room; G. and R. were also there. T. woke up shortly after she arrived. P.J. was attracted to T. They had intercourse and P.J. stayed overnight.

[19] P.J. testified that when she woke up in the morning, her phone was gone. While she did not believe that G., T. or R. had taken her phone, she was “concerned a little.”

(b) The Decision to Come to Ottawa

[20] P.J. testified that it was her idea to come to Ottawa to work as an escort and to make money. She testified that she discussed this with G., T. and R. and they offered to pay for her flight to Ottawa. This was a “big factor” in her decision because all of her money had been stolen at the club. It felt like a “good opportunity.”

[21] P.J. was cross-examined about the discussions at the condo. She first agreed that she only had discussions with T. P.J. disclosed to T. that she was involved in the escort business. They did not discuss the possibility of work in Ottawa.

[22] She then testified that she also had a conversation with G. When it was put to her that G. never talked to her about escorting or working as an escort in Ottawa, P.J. responded that she did not remember. When it was suggested to her that G. never talked to her about money matters, P.J. responded that she did not remember. She agreed that she did not have a conversation with G. in either Vancouver or in Ottawa about basic arrangements related to working as an escort.

[23] On cross-examination, P.J. testified that she flew to Ottawa for two reasons: to be with T. and to make money. She did not agree that T. was the main reason she came to Ottawa.

[24] The next day, September 19, 2016, the four of them left the condo together. A fifth person drove the car. They headed to the airport, stopping en route at P.J.’s mother’s house so that P.J. could pack some things. She used her expired identification to travel. She testified that she did not remember to whom she gave her personal information for purposes of booking her flight. She did not know who paid for her flight.

[25] G. (who had been on an earlier flight with R.), picked P.J. and T. up at the Ottawa airport. Another man, H., was with G. G. dropped P.J. off at a motel, left her with H., and drove off. Later, G. returned and took P.J. to another hotel.

(c) Working in Ottawa

[26] P.J. testified that she did not work as an escort the first night she was in Ottawa. She thought she started doing outcalls either the next day or the next night. She testified that R. drove her to some of the outcalls with “everyone” in the car. G. offered her speed a few times so that she could stay up and make more money. When she declined, G. was “fine with that.” G. provided her with a cell phone. He did not ask her to pay him back for the phone.

[27] P.J. first testified that she did not know who was setting up the calls or the ads. After her memory was refreshed, she testified that R. set up ads for her and that for the first few nights she was in Ottawa, it was R. who communicated with clients. There was no discussion about rates or the content of the ads.

[28] P.J. testified on her examination in chief that the money she made from the first couple of nights she worked went to G.: “I handed the money to him myself.” She testified that R. told her that G. was her boss and to give the money to G. On cross-examination, P.J. agreed that she gave her money to R. who told her that he gave it to G. She also agreed that G. never asked her for her money. T. told her to keep her money. T. did not ask her for a cut of the money she made.

[29] The second night in Ottawa, P.J. spoke to T. on the phone. She did not see T. until the following day or possibly the day after, when she went over to T.’s place. R. and G. drove her there. P.J. made it clear to T. that he was not her pimp. She did not know who she thought was her pimp at that time. From the beginning, she told R. and G. how she felt about T. Outside T.’s building, G. made a comment to P.J. She testified that G.’s comment made her really anxious and made her think that G. was not happy with her being with T. Nevertheless, she did go and see T. She slept most of the day. They did not stay at T.’s place overnight.

[30] P.J. testified that after her credit card was replaced, she paid for a hotel room for T. and herself. She also paid for a second room for R. and G. G. paid her back in cash for the second room. P.J. told G. not to bring anyone to her room but R. and “another guy” came over. She felt that R. and G. were angry at her because she had chosen to be with T. She testified that she felt anxious around them.

[31] That night, P.J. told a client that she was in Ottawa with three men and that she was afraid. The client gave her extra money which she hid under her mattress. She kept that money for herself. The same night, P.J. called a friend and asked him to help her. Her friend told her that his cousin could come and get her right away. P.J. did not tell her friend’s cousin to come because, in part, she wanted to stay with T. When T. came to the hotel room that night, they did not discuss how P.J. was feeling.

[32] On cross-examination, P.J. agreed that by day three of her stay in Ottawa, she was “independent” in the sense that no one was taking the money she made working as an escort. By this point, she was originating her own clients.

[33] P.J. testified that she sent T. some photos she had used for her ad in Vancouver so that she could work. She was clear that T. did not create the ads because he did not know how: “he did not have much experience in this kind of work.”

[34] One day they went to an outlet mall. P.J. bought T. a shirt. She also paid for a tracksuit for G. On cross-examination, she agreed that G. did not demand that she pay for it.

[35] A few days after she had arrived in Ottawa, G. arranged for P.J. to meet two women from Montreal – “P.” and “C.” P.J. testified that G. told her that he was going to take her identification because he did not want the other women to steal it from her. P.J. gave her identification to him even though she thought it was just another excuse to ensure that she did not leave. G. returned her identification to her after she had finished working that night.

[36] P.J., P. and C. took photos, created ads and started working. They worked together for just one night. P.J. testified that she put the money she made under the mattress. When she woke up in the morning, the money was gone. This happened twice. G. said that they had been robbed.

[37] P.J. testified that one night, she, G., T. and R. were outside talking and that G. told her he had used T. to bring her to Ottawa. P.J. was hurt and confronted T. and R. T. denied it was a set up. After her memory was refreshed with her statement to the police, P.J. testified that she and T. had a further conversation about what G. had suggested and that T. admitted it was a set up.

[38] P.J. testified that by this point, she wanted to leave Ottawa. She had plans to go to Toronto but she did not end up going. When she told G. that she was going to go to Toronto and then come back, his response was “ok, we’ll come with you.” When she told T. about her plan to go to Toronto, “he was fine with it.”

(d) The House Fight

[39] The night before she returned to Vancouver, P.J. was involved in a fight at a house party. P.J. testified that she was sober when she went to the party; she had taken some xanax and then slept it off. On cross-examination, P.J. conceded that she drank alcohol at the party and was drunk.

[40] When she arrived at the party, she saw T. flirting with another woman. P.J. and the woman argued and then P.J. left. T., G., R. and “whoever else was at the party” followed her to the lobby. The woman with whom P.J. had been arguing grabbed P.J.’s phone and claimed it was hers. The two of them started fighting.

[41] As a result of the fight, P.J. went to the hospital. She asked T. to come to get her but he was unable to. After leaving the hospital, P.J. stayed overnight at someone’s house. The next morning, she was offered a drive to the police station. P.J. gave a statement to the police and provided them with the phone G. had given to her. P.J. testified that only she and T. had access to the phone.

[42] It is admitted that P.J. was driven to the airport by the Ottawa police following her October 3, 2016 interview, and that she flew to Vancouver the same day.

(e) The November 13, 2016 Phone Call

[43] On November 13, 2016, P.J. called T. She testified that T. answered and then passed the phone to G. G. said to her, “I know where your mom lives. Come meet up with us.” P.J. reported the call to the Vancouver police.

(ii) Other Evidence

[44] I address the balance of the Crown’s evidence in the analysis section of these reasons.

C. The Legal Framework

[45] K.G.A. and A.S.A. are each presumed innocent of all charges against them; they cannot be convicted of those charges unless the Crown proves their guilt beyond a reasonable doubt. It is not sufficient for the Crown to establish possible guilt or even probable guilt. For a finding of guilt to be made, the Court must be sure that the offence was committed. There is no onus on K.G.A. or on A.S.A. to prove anything, least of all their innocence.

[46] A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in the trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or the absence of evidence.

[47] My assessment of the credibility and reliability of the testimony of the witnesses takes into account that many individuals called upon to give evidence at a criminal trial are not familiar with the process, may never have experienced a courtroom setting, and are required to rely upon their memory of events that transpired a number of years earlier.

[48] I am mindful of inconsistencies and contradictions in a witness’ testimony. While consistency is an element of truthful testimony, I do not expect perfection in a witness’ testimony. Minor inconsistencies are an element of truthful testimony. Significant inconsistencies or contradictions, however, are treated much differently and can, in some circumstances, result in a witness’ testimony being rejected in whole or in part.

[49] In this matter, I am not required to consider competing versions of the events giving rise to the charges against K.G.A. and A.S.A. I have heard only from Crown witnesses. The question is whether, on the basis of the evidence which I accept, I am convinced beyond a reasonable doubt of the guilt of the accused of the offences with which they are charged.

D. Analysis

(i) Assessment of P.J.’s Evidence

[50] To be accepted, evidence must be both reliable and credible. Reliability has to do with the accuracy of the witness’ evidence. Credibility involves truthfulness. I have carefully considered P.J.’s testimony. The Crown conceded that there were difficulties with some of P.J.’s evidence, but submitted that these difficulties should not impact my assessment given P.J.’s testimony that she was embarrassed and nervous about giving evidence. Crown counsel also pointed to the exhibits which she submitted corroborate and bring clarity to P.J.’s experience.

[51] I do not agree with the Crown’s submission. There were significant issues with P.J.’s credibility and the reliability of her testimony. I provide the following examples.

[52] First, I do not accept as credible P.J.’s evidence that she came to Ottawa both to work as an escort and to be with A.S.A. At the time she made her decision to come to Ottawa – and she was clear in her testimony that it was her decision – she had worked in the escort business for six to seven months in various cities. P.J. considered herself a professional. She agreed on cross-examination that she was in the escort business to make money and that she was not going to work with someone if they were not going to help her to make money. I reject her explanation that anxiety prevented her from “seeking clarity” with respect to the business arrangements for Ottawa. She testified that Ottawa felt like a good opportunity but she admitted that she did not know the job market for escorts or the availability of work in Ottawa. On her own evidence, she had no discussions with K.G.A. or A.S.A. about working in Ottawa as an escort. In light of her own testimony, P.J.’s evidence that one of the two main reasons she came to Ottawa was to work as an escort simply does not make sense. I find that the main reason P.J. came to Ottawa was because she wanted to be with A.S.A.

[53] Second, P.J. conceded that her recollection of the night at the Vancouver club and at the condo is “foggy.” She testified that she was “really intoxicated” when she went to the club. P.J. explained the inconsistency in her statement to the police – her phone had been stolen at the club – and her statement at trial – her phone did not go missing until she woke up at the condo – on the basis of her foggy recollection of the events. In itself, the inconsistency regarding the loss of P.J.’s phone is not significant. However, as a result of P.J.’s admittedly foggy recollection, I have significant concerns as to the reliability of her evidence of what happened and what was discussed at the condo.

[54] Third, I have significant concerns as to the reliability of P.J.’s evidence relating to the period of time she was in Ottawa, and in particular, during the first two days. P.J. agreed that in September 2016, she was using Xanax “quite often” and that it affected her memory, impacted her emotions and caused her confusion. She agreed that she experienced these side effects in Ottawa when she took Xanax, that she “missed a day” when she reported to the Ottawa police because her memory was “so confused” and that she told the police that she was so confused she did not know who she was working for. Her memory of the first day in Ottawa was “blurry,” there was drinking and there was partying. She admitted to no real recollection of her second day in Ottawa. She testified that as of the second day, “I don’t know who I thought was my pimp at that time.” The timing is significant because by the third day, she considered herself “independent” – no one was taking the money she was making and she was originating her own clients.

[55] Fourth, in a number of key areas, P.J.’s testimony was not internally consistent. For example, on her examination in chief, she testified that she gave K.G.A. all her money. On cross-examination, P.J. testified that “if I was independent, I would be keeping my money and G. was taking my money.” When her prior statement to the police was put to her on cross-examination, P.J. agreed that she gave the money to R.Q.G., but she stated that it was on the understanding that K.G.A. was getting all the money. I do not find P.J.’s evidence in this regard to be credible. In responding to questions on this issue, P.J. was evasive, twice stating, “I don’t care anymore.” She also agreed that K.G.A. never asked her for the money. P.J. also attempted to blame K.G.A. for her missing money: “I stopped giving him money and the money started going missing.” I find that a more likely explanation in all the circumstances is that P.J. either spent the money she made or misplaced it.

[56] Nor was P.J.’s testimony consistent as to who set up the ads. She first testified that she did not know who was setting up the calls or the ads. After her memory was refreshed, she testified that R.Q.G. set up the ads for her and that R.Q.G. communicated with clients.

[57] I highlight a third significant inconsistency in P.J.’s testimony. P.J. first testified that after K.G.A. told her he had used A.S.A. to bring her to Ottawa, she confronted A.S.A. and R.Q.G. who denied everything. She then testified that A.S.A. said K.G.A.’s suggestion was “a lie.” After she was referred to her statement to the police, she testified that A.S.A. admitted that it was a “setup.” This contradiction in P.J.’s testimony goes to the heart of the Crown’s theory that A.S.A. served as the “lure” for P.J. to come to Ottawa to work in the sex trade.

[58] Fifth, I do not accept P.J.’s evidence that K.G.A. “made me anxious” and that her resulting anxiety precluded her from leaving Ottawa for Toronto. When it was put to her that she reported to the police that she was content with K.G.A. sleeping on the couch in her hotel room, P.J., qualified her prior statement with “because he had nowhere else to be.” I find that in giving her evidence, P.J. made a rather poor attempt to explain the apparent inconsistency.

[59] I do not accept P.J.’s evidence that K.G.A. caused her anxiety such that she was precluded from leaving Ottawa for a second reason. Her evidence in this regard is entirely inconsistent with her own testimony that K.G.A. expressed no anger about her going to Toronto with A.S.A. She testified that he was fine with her leaving – “do whatever you want to do.”

[60] I also reject P.J.’s evidence that K.G.A. took her expired driver’s license to ensure that she did not leave. Her evidence defies common sense given her own testimony that K.G.A. returned her identification to her after she finished working with P. and C.

[61] Sixth, I find that P.J. was not always forthcoming in giving her evidence. For example, it was only on cross-examination that it came out that P.J. was intoxicated at the house party where she became involved in the fight. She admitted that she lied when she stated at the preliminary inquiry that she had not sold drugs in the past.

[62] Finally, in assessing P.J.’s evidence, I have considered the frequency with which P.J. answered “I don’t remember” or “I don’t know” in response to questions put to her, throughout her examination in chief and on cross-examination. In some instances (for example, when she was asked whether she remembered K.G.A.’s offer to pay for the tracksuit), I consider her answers to be evasive and non-responsive. The frequency with which P.J. responded in this fashion adversely impacted the reliability of her evidence.

[63] The examples I have provided are by no means the only difficulties that arose in P.J.’s evidence. I find that the totality of the problems with her testimony make her account both unreliable and untrustworthy. I conclude that it would be dangerous to convict K.G.A. and A.S.A. based on P.J.’s evidence.

[64] I address briefly each of the offences with which K.G.A. and A.S.A. are charged.

(ii) Human Trafficking

[65] Section 279.01(1) of the Criminal Code provides:

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.

[66] No consent to the activity that forms the subject matter of a charge under s. 279.01(1) is valid (s. 279.01(2)).

[67] K.G.A. and A.S.A. are charged that between September 19 and October 3, 2016, they exercised control, direction or influence over the movements of P.J., for the purpose of exploiting or facilitating the exploitation of her.

[68] In R. v. A.A., 2015 ONCA 558, [2015] O.J. No. 4016, the Court of Appeal for Ontario interpreted the offence of human trafficking of a person under the age of eighteen in s. 279.011 of the Criminal Code. But for the additional element in s. 279.011 of “prohibited group” – persons under the age of eighteen – the Court of Appeal’s analysis applies equally to s. 279.01.

[69] The conduct requirement may be established in several different ways, including exercising control, direction or influence over the movements of another person (R. v. A.A., at para. 80). In this case, the Crown alleges the accused exercised control over P.J. at the outset of their relationship and exercised influence over her in the following days.

[70] The fault element of the offence consists of two components. The first is the intent to do anything that satisfies the conduct requirement. The second component is the purpose for which the conduct in relation to the person is done, specifically, the purpose of exploiting or facilitating the exploitation of that person. In other words, the purpose element extends to the reason for which the conduct is done or the result intended (R. v. A.A., at para. 82).

[71] What is meant by “exploiting” and “exploitation” in s. 279.01(1) is informed by s. 279.04 which provides in part:

(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.

[72] No exploitation need actually occur or be facilitated by the accused’s conduct for an accused to be convicted of human trafficking (R. v. A.A., at para. 85). In other words, exploitation and safety relate to an accused’s purpose and not to the actual consequences of the accused’s behaviour for the victim (R. v. A.A., at para. 86).

[73] In cases where the facts do not lend themselves to a finding of actual exploitation, the definition of exploitation in s. 279.04 informs the court’s analysis of whether the accused was acting with the requisite purpose when the accused committed one of the listed acts (R. v. A.A., at para. 87).

[74] There are both subjective and objective components to whether exploitation exists. The conduct must be such that it results in a reasonable expectation of a particular state of mind in the complainant. In R. v. A.A., the Court of Appeal, at para. 70, stated:

Section 279.04 instructs us that one person exploits another if they cause that other person to provide labour by doing something 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 the labour…three conclusions emerge:

i. the expectation of the specific belief engendered by the accused’s conduct must be reasonable, thus introducing an objective element;

ii. the determination of the expectation is to be made on the basis of all the circumstances; and

iii. the person’s safety need not actually be threatened.

[75] The term “safety” that appears in s. 279.04 is not limited to the state of being protected from physical harm; it also extends to psychological harm (R. v. A.A., at para. 71).

(a) K.G.A.

[76] There is no evidence that K.G.A. directed or dictated P.J.’s movements, through deception, coercion, or otherwise. The Crown alleges that P.J.’s vulnerable state made her an easy mark and receptive to “starting anew” in Ottawa. I do not agree with this submission. It was P.J. who sought out A.S.A. after they met at the Vancouver club, not the other way around. On her own evidence, it was P.J.’s idea to come to Ottawa and I have found that the main reason she did so was because she wanted to be with A.S.A. She did not come to Ottawa at the direction of K.G.A. There is no evidence that P.J. discussed with K.G.A. working in Ottawa as an escort.

[77] There is no evidence that K.G.A. ever arranged or answered calls for P.J. K.G.A. did not ask P.J. for a cut of any money she made while in Ottawa. She agreed that she did not give any of her money to K.G.A.

[78] K.G.A. did not insist she take the speed he offered to her and he did not ask to be reimbursed for the phone he gave to her. K.G.A. returned her identification to her after she had finished working with the women from Montreal. On at least one occasion, K.G.A. reimbursed P.J. for the cost of a hotel room.

[79] P.J. testified that she felt that K.G.A. was not happy when she told him she wanted to be with A.S.A. and that he told her a story about A.S.A.’s dangerous friend. But P.J. still went to be with A.S.A. for the day. Significantly, K.G.A. did not react with anger or threats when P.J. said she was going to go to Toronto. And, although P.J. testified that K.G.A. made her “anxious,” she said that he could stay over in her hotel room.

[80] Crown counsel also submitted that K.G.A. limited P.J. from “moving on” from Ottawa by retaining her luggage in the trunk of his car and refusing to give it back to her. The Crown’s position is belied by the context: K.G.A.’s car was in the garage and P.J. did get her luggage back. K.G.A.’s conduct in this regard does not amount to an attempt to control P.J.

[81] I do not agree with the Crown that K.G.A. was a “consistent presence” influencing P.J.’s work throughout the time she was in Ottawa. When she arrived in Ottawa with A.S.A., K.G.A. picked them up at the airport. This was the only time K.G.A. drove P.J. P.J. did not work on September 19, 2016, her first day in Ottawa. P.J.’s evidence was that on day two, K.G.A. was “passed out.” And, by day three, she considered herself to be independent. K.G.A.’s presence from time to time does not equate to the exercise of control, direction or influence over P.J.

[82] The Crown has failed to prove that K.G.A. exercised control, direction or influence over P.J.’s movements. I therefore find K.G.A. not guilty of the charge of human trafficking.

(b) A.S.A.

[83] The Crown has also failed to satisfy me beyond a reasonable doubt that A.S.A. exercised or facilitated the exercise of control, direction or influence over the movements of P.J. P.J. first met A.S.A. at the club in Vancouver. But she left the club alone. It was P.J. who sought out A.S.A., not the other way around. She made the decision to come to Ottawa because she wanted to be with A.S.A. She disclosed to A.S.A. that she was involved in the escort business but they did not discuss the possibility of P.J. working in Ottawa.

[84] Once they arrived in Ottawa, A.S.A. and P.J. went their separate ways. P.J. made the decision to rent a hotel room for the two of them and, as confirmed in the message extractions, it was P.J. who reached out to A.S.A. on several occasions.

[85] A.S.A. told P.J. to keep the money she made. He never asked her for a cut of her earnings.

[86] At no point did A.S.A. use P.J.’s past work against her. There is no evidence that A.S.A. used his relationship with P.J. to exploit her. When P.J. decided that she wanted to leave Ottawa, A.S.A. did not try to convince her to stay.

[87] With respect to A.S.A., the Crown has failed to establish the conduct requirement of s. 279.01(1). I find A.S.A. not guilty of the charge of human trafficking.

(iii) Material Benefit

[88] The elements of the material benefit offence under s. 279.02(1) of the Criminal Code are:

(i) the accused received a financial or other material benefit;

(ii) the benefit was derived from the commission of a trafficking in persons offence and the accused knew that fact; and

(iii) the prohibited conduct in s. 279.01 occurred.

[89] The Crown has not satisfied me that the prohibited conduct in s. 279.01 occurred. In addition, the Crown has not proved that K.G.A. received a financial or other material benefit. While the word “benefit” is not defined in the Criminal Code, in its ordinary sense, a benefit is an advantage or profit gained from something (R. v. Esho, 2017 ONSC 6152, at para. 123). P.J. did not give any of her money to K.G.A. In my view, K.G.A.’s occasional stays on the floor of P.J.’s hotel room are not material benefits within the meaning of s. 279.02(1).

[90] For the same reason, A.S.A.’s stays in hotel rooms paid for by P.J. do not amount to a material benefit derived from the alleged offence, particularly in light of the evidence that P.J. reached out to A.S.A. and told him where to meet her. He was invited to stay.

[91] The Crown also relies on P.J.’s testimony that she gave A.S.A. $500 which he did not return to her and that she bought him a shirt at the outlet mall. Even if I were satisfied that the prohibited conduct in s. 279.01 occurred, which I am not, there is no evidence to connect either the money or the purchase funds for the shirt to P.J.’s escort work during her first couple of days in Ottawa.

[92] I find K.G.A. and A.S.A. not guilty of the material benefit charge.

(iv) Advertising

[93] Section 286.4 of the Criminal Code provides that a person who knowingly advertises an offer to provide sexual services for consideration is guilty of an offence.

[94] Crown counsel submitted that I should infer K.G.A. and A.S.A. were responsible for posting the ads on Backpage.com because such an inference “is not illogical in the circumstances as a whole.” However, it is not sufficient for the Crown to establish possible, likely or even probable guilt. For a finding of guilt to be made, I must be persuaded beyond a reasonable doubt that the offence was committed by the accused.

[95] In this case, considering all of the evidence, including the Backpage ads and the administrative data associated with those ads, the testimony of Detectives Villeneuve and Lavergne, and the testimony of S.H., one of the Montreal women with whom P.J. worked, I simply cannot be sure who posted the ads. In conflict with the Crown’s theory, P.J. testified that it was R.Q.G. who set up the ads for her, and that A.S.A. most certainly did not create the ads because he did not know how. Phones are transferable. The administrative data associated with the ad – including the email address and phone number – does not pinpoint the device on which the ad was created. Ads can be posted remotely.

[96] I find K.G.A. and A.S.A. not guilty of advertising an offer to provide sexual services for consideration.

(v) Criminal Harassment

[97] K.G.A. is charged with engaging in threatening conduct directed at P.J.’s mother so as to cause P.J. to reasonably fear for her mother’s safety. The criminal harassment charge arises from the words K.G.A. is alleged to have said to P.J. on the phone in Vancouver: “I know where your mom lives. Come meet up with us.”

[98] To engage in threatening conduct means to do something that, in all the circumstances, including the relationship between the accused and the complainant, a reasonable person would consider a threat or intimidation. The issue in this case is whether a reasonable person would consider the words alleged to have been spoken by K.G.A. to be a threat or intimidation.

[99] In assessing the words alleged to have been spoken, I have considered the following:

• P.J. initiated the phone call to A.S.A. who then passed the phone to K.G.A.;
• P.J. and K.G.A. spoke only briefly before he ended the call;
• the phrase does not expressly contain a threat;
• the words “or else” were not used;
• at no time did K.G.A. act violently toward P.J.;
• at no time prior to the call did K.G.A. threaten P.J.; and
• K.G.A. did not react with anger when P.J. told him she wanted to leave Ottawa and he did not preclude her from leaving.

[100] Taking into account all the circumstances, a reasonable person would not consider the words to be threatening or intimidating.

[101] I therefore find K.G.A. not guilty of criminal harassment.

E. Summary

[102] For these reasons, I find K.G.A. not guilty on the charges of human trafficking, receiving a material benefit, advertising, and criminal harassment (counts 1, 2, 3 and 4 on the indictment). I find A.S.A. not guilty on the charges of human trafficking, receiving a material benefit, and advertising (counts 1, 2 and 3 on the indictment). Acquittals will be entered accordingly.

Madam Justice Robyn M. Ryan Bell

Released: January 10, 2019