COURT FILE NO.: CR-22-5-50000480 DATE: 20230110

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – KALIB RAHI Defendant

Counsel: S. Orlando, for the Crown L. Dallas and G. Dorsz, for the Defendant

Heard: November 28 to December 8, 2022

JUSTICE S. NAKATSURU

1These are the written reasons further explaining the brief oral rulings I made in Mr. Kalib Rahi’s jury trial on human trafficking and related charges.

A. OVERVIEW OF THE ALLEGATIONS

A. OVERVIEW OF THE ALLEGATIONS

2Mr. Rahi is alleged to have sexually assaulted, threatened, extorted, and human trafficked K.H., a single mother who lived in Eastern Ontario. Initially, K.H. met Mr. Rahi through their mutual interest in dogs. Mr. Rahi ran a dog breeding business. K.H. began to deliver puppies for Mr. Rahi to earn a little extra money. Soon enough, Mr. Rahi proposed that she engage in sex work. She demurred. He persisted. Ultimately, he was successful. It culminated in a 5-day period leading into the Canada Day weekend of 2017 when according to K.H., Mr. Rahi forcibly took her and her girlfriend to work in the sex trade in Montreal and Toronto. It only ended because K.H.’s mother became worried she could not contact her daughter and filed a missing person’s report with the police. After her mother reached K.H. and Mr. Rahi by phone and forcefully demanded her return, K.H. came home. In her discussions with her mother, K.H. denied she was doing anything other than delivering puppies during her absence. The events underlying the charges only came to light some fourteen months later, when the Toronto Human Trafficking Enforcement Team came upon the missing person’s report and contacted K.H.’s mother and then K.H.

B. THE ADMISSIBILITY OF THE POLICE BULLETIN

B. THE ADMISSIBILITY OF THE POLICE BULLETIN

3The Crown seeks to admit a police bulletin sent out to the public asking for information about the identity and contact information of three women who the police felt were trafficked by Mr. Rahi. The Crown seeks to introduce the bulletin through K.H. She had identified one of the women on the bulletin to a police officer as being someone who assisted Mr. Rahi in K.H.’s procurement as a sex trade worker. The Crown argues that K.H.’s ability to identify this woman is evidence corroborating her credibility.

4The defence objects to this evidence arguing that rule 30.01 of the Criminal Proceedings Rule was not complied with. Alternatively, it is submitted that the prejudicial effect of its admission outweighs its probative value. The Crown counters that any prejudice can be adequately addressed through redactions to the bulletin and appropriate jury instructions.

5While I have concerns that rule 30.01 of the Criminal Proceedings Rules was not appropriately addressed, I find that the evidence should not be admitted as the prejudicial effect of its admission outweighs its probative value.

6The probative value of this evidence is minimal. The Crown is not calling this woman that K.H. identified. Aside from K.H.’s assertion that this woman was involved, there is no other evidence that this woman in the photograph has anything to do with Mr. Rahi or these offences. Any weight to be attributed to her identification depends entirely on K.H.’s word that this woman was involved. The existence of this woman as evidenced by the photograph does nothing to enhance K.H.’s credibility except through circular reasoning.

7On the other hand, the prejudice to Mr. Rahi is significant. Even with redactions, the evidence led through K.H. and the police investigator would suggest to the jury that Mr. Rahi is involved in the trafficking of other women. While the jury will hear about one woman’s involvement through K.H. as a part of the narrative of her exploitation, the admission of the photographs of the two other women in the bulletin will suggest Mr. Rahi’s involvement in human trafficking is even wider. Moreover, it will insert a collateral issue that will be distracting and time consuming. The Crown will have to call a police witness(es) to testify about the creation of the bulletin and the nature of the police investigation into Mr. Rahi that led to the selection of these three women. This compounds the moral prejudice with reasoning prejudice.

C. THE ADMISSIBILITY OF THE ESCORT ADS FOUND BY “TRAFFIC JAM”

C. THE ADMISSIBILITY OF THE ESCORT ADS FOUND BY “TRAFFIC JAM”

8The Crown seeks to admit three escort advertisements that purport to offer K.H.’s sexual services in certain Ontario locations. These advertisements were uncovered by Sgt. Reynolds using a third-party commercial computer program called “Traffic Jam.” Sgt. Reynolds inputted two photographs of K.H. as found in her modeling profile, into the Traffic Jam program and received a report which included the escort advertisements the Crown seeks to tender.

9Sgt. Reynolds testified on the voir dire. Sgt. Reynolds has experience in using Traffic Jam but admitted he was no expert in it. There were several things about the program he could not answer. At its basic, Sgt. Reynolds described Traffic Jam to be an internet search engine searching the internet for past and current sexual services advertisements on various websites.

10The Crown seeks admission of the information uncovered by the Traffic Jam program as found in Exhibits A, B, and C. The defence objects to their admissibility on several grounds: (1) the lack of authentication; (2) the lack of expert opinion evidence; and (3) prejudice vs. probative value.

11Regarding the first objection, I find there to be sufficient authentication. These escort advertisements are electronic documents and must meet the authenticity requirement of s. 31.1 of the Canada Evidence Act, R.S.C. 1985, Chap. C-5. The threshold for the authentication of electronic documents is low: R. v. C.B., 2019 ONCA 380, 146 O.R. (3d) 1 at para. 67. It can be satisfied by direct or circumstantial evidence that the document is what it purports to be: R. v. Hirsch (2017), 2017 SKCA 14, 353 C.C.C. (3d) 230 (Sask. C.A.) at para. 18. In this case, based on the testimony of Sgt. Reynolds, the Crown has met this low threshold. These exhibits are what they purport to be: copies of sexual services advertisements that were posted on the internet: R. v. Farouk, 2019 ONCA 662 at para. 60.

12There is greater merit to the other defence objections. The exhibits do not only include the sexual services advertisement that a viewer would have seen posted on a website at some point in time. On the right side of the page of each exhibit, there is information that is extrinsic to the advertisement and is generated by the Traffic Jam program. The Crown seeks admission of this information as well. In particular, the Crown seeks the jury to have the information found on the left side of the page of Exhibit C that states “email: kalibjmell@gmailcom”. The Crown does not have any subscriber information about the person who uses this email address but seeks the admission of it to argue that it is circumstantial evidence of the accused having created the advertisement because it contains the name “kalib”.

13Sgt. Reynolds testified he believes this is the email address of the person who created the advertisement. However, he admitted he does not know how Traffic Jam secured this address.

14In my opinion, there are two reasons why this evidence is inadmissible: (1) this evidence is hearsay; and (2) specific portions of the results of the Traffic Jam search cannot be admitted through Sgt. Reynolds and requires expert opinion evidence or a witness with greater knowledge of the Traffic Jam program.

15First, this evidence is hearsay through Sgt. Reynolds. The Crown has not sought admission of this digital data under any hearsay exception such as business records pursuant to s. 30 of the Canada Evidence Act. Moreover, the Crown has not called any evidence from the internet provider or website operator. While a police officer can testify from experience and knowledge that an email address is required to set up an escort advertisement on a website like Backpages, the officer cannot testify that “kalibjmell@gmailcom” was the email address used to set up the advertisement as found in Exhibit C. This is hearsay as it is being tendered for the truth of that assertion and is thus inadmissible: R. v. Simmons, 2021 ONSC 3443 at paras 48, 51-55; R. v. Hanse, 2022 ONCA 843 at paras. 33-39.

16Second, Sgt. Reynolds cannot testify about how Traffic Jam uncovered and identified this email address as that of the person who created and posted this advertisement. The email address does not appear on the advertisement itself. In addition, on the left side of the page in Exhibits A and B, there is no email address listed under the field for it. Sgt. Reynolds cannot explain this. This just illustrates Sgt. Reynolds’ lack of knowledge of how Traffic Jam populates the information found on the left side of the exhibits. I should point out that Sgt. Reynolds used this information received from the Traffic Jam report to form a part of the Information to Obtain he swore for the search warrants in this case. There is nothing wrong with that. However, to have that same evidence admitted at a trial, requires someone either with expertise or greater knowledge of the program than Sgt. Reynolds has.

17Thus, the evidence on the left side of the page of each exhibit is inadmissible and needs to be redacted.

18The escort advertisements themselves are admissible. The relevance and probative value of the evidence is based on the contents of the advertisements themselves. Sgt. Reynolds has experience as a human trafficking investigator with similar escort advertisements found on such platforms like Backpages. He also has uncovered them using the Traffic Jam program. Thus, Sgt. Reynolds can lay the evidentiary foundation for their admission with that knowledge and experience. What Sgt. Reynolds did in uncovering these advertisements was little more than use Traffic Jam as a search engine on the internet; very much like using the Google search engine. The only added feature of Traffic Jam is that the digital universe it scours includes deleted advertisements. In these circumstances, as expert opinion evidence is not required to explain how an internet search engine works, expert opinion evidence is not required for the admission of the escort advertisements: See R. v. Hamilton, 2011 ONCA 399 at paras. 273-284.

19These escorts advertisements have probative value. They lend some confirmation to K.H.’s testimony that she worked in the sex trade and that Mr. Rahi created the advertisements, even without any specific information about who actually created them. K.H. testified that she only worked as an escort at Mr. Rahi’s behest. The mere existence of the sexual services advertisements logically tends to support the proof of that.

20There is no moral prejudice. The advertisements do not reflect on the character of Mr. Rahi or accuse him of any other crime or misconduct. There is little reasoning prejudice. There are only three such sexual services advertisements that the Crown seeks to tender and they relate to a fact in issue in this case. There is no reason to exclude them on the basis that the prejudicial effect of their admission outweighs their probative value.