WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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).

486.4(2) 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 victim of the right to make an application for the order; and

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

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(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.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2019-06-19

Docket: C64869 / C65845

Judges: Sharpe, Brown and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Dimitri Majdalani and Haven Schmidt-Fabian Appellants

Counsel

Mark C. Halfyard and Chris Rudnicki, for the appellant, Dimitri Majdalani

Robert Sheppard, for the appellant, Haven Schmidt-Fabian

Kathleen Doherty, for the respondent

Heard and released orally: June 17, 2019

On appeal from: the convictions entered by Justice K. McKerlie of the Ontario Court of Justice, on March 1, 2017.

Reasons for Decision

[1] The appellants appeal from their convictions for human trafficking and procurement of M. C.-W. into prostitution. The appellant, Haven Schmidt-Fabian, abandoned her sentence appeal on November 30, 2018.

[2] The appellants submit that the trial judge erred by misapprehending material evidence, failing to reconcile critical differences in the evidence and failing to provide sufficient reasons for her decision. The verdicts, the appellants argue, are unreasonable, and the convictions should be either quashed and acquittals entered or a new trial ordered.

[3] We do not accept these submissions. The thrust of the appellants' submissions is to ask this court to re-do the trial judge's credibility analysis, on which her decision turned, without identifying a clear error that would permit us to do so.

[4] There was ample evidence to support the verdicts. The trial judge was entitled to accept that while the complainant voluntarily decided to commence and continue as a sex-trade worker, the appellants started to control her actions, withhold her earnings, and force her on numerous occasions to work as a prostitute against her wishes.

[5] The trial judge was alive to the deficiencies with the complainant's evidence. In particular, she dealt with the issues of the complainant's alleged motive to lie and when the appellants took her cellphone. She also approached with considerable caution the question of whether the complainant had retracted her allegations against the appellants and admitted lying to the police when she spoke to the police on April 5, 2016. In our view, it was open to the trial judge to accept the complainant's evidence as to when her cellphone was taken and to prefer the complainant's denial of any motive to lie, retraction or lying to the police. The trial judge's finding that, "the officers did not understand the situation correctly and did not accurately record their interactions with the complainant", adequately answers the appellants' submission that the trial judge failed to grapple with the question of whether the complainant lied at trial.

[6] Finally, the trial judge's reasons show a clear path to her determination of the appellants' guilt on the charges for which they were convicted.

[7] Accordingly, we dismiss the appeals.

Robert J. Sharpe J.A.

David Brown J.A.

L.B. Roberts J.A.