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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).
(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.
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(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.
(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.
(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.
(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: 20221026 Docket: C69553
Judges: Tulloch, Thorburn and George JJ.A.
Between:
His Majesty the King Respondent
and
Ferhat Tekin Appellant
Counsel:
Mark Halfyard and SuJung Lee, for the appellant Michael Fawcett, for the respondent
Heard and released orally: October 21, 2022
On appeal from the conviction entered on September 4, 2019 by Justice Laura A. Bird of the Superior Court of Justice, sitting without a jury.
Reasons for Decision
Reasons for Decision
1After trial the appellant was found guilty of human trafficking of a person under the age of 18, in addition to the following offences: receiving a material benefit knowing it was obtained by the commission of an offence; knowingly advertising sexual services for consideration; possessing child pornography; making child pornography; and making available child pornography.
2The appellant appeals only against the conviction for human trafficking. He does not dispute the trial judge’s factual findings, but submits the facts, as found, are insufficient to ground a conclusion that he had the specific intent to exploit the complainant. We disagree.
Analysis
3The trial judge made findings of facts available to her, and accurately cited, and properly applied, the relevant legal principles. Her finding that the appellant intended to exploit the complainant is amply supported by the record, including evidence that the complainant feared for her safety – psychological harm reasonably found to be the result of the appellant making his affection and attention dependant on her work as an escort (for his financial benefit).
4The facts clearly establish that the appellant was manipulative; intentionally cultivated an exploitive relationship with the complainant, who was young, vulnerable, and infatuated with him; and then used that relationship to coerce her to perform sex work.
5As this court stated in R. v. A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 87:
In cases where exploitation, as defined in s. 279.04, arises from the facts, inferring that the accused's purpose was to exploit the victim will usually be a relatively straightforward task.
6As the appellant does not dispute he engaged in the conduct alleged, which, in our view, was clearly exploitative; or that he benefited financially from the complainant’s work as an escort, the inferential leap to find that he intended the consequences of his own actions was obvious.
7In this case the complainant was 17 years old, young, vulnerable and infatuated with the appellant. There was no other reasonable inference available on the evidence.
Disposition
8The appeal is therefore dismissed.
“M. Tulloch J.A.” “J.A. Thorburn J.A.” “J. George J.A.”
