Court of Appeal for Ontario
Copeland, Dawe and Madsen JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Jason Deidun
Appellant
AND BETWEEN
His Majesty the King
Respondent
and
Dana Bernard
Appellant
Theresa Donkor, for the appellant Jason Deidun
Megan Stephens, for the appellant Dana Bernard
Deborah Krick, for the respondent
Heard: March 4, 2026
On appeal from the convictions entered by Justice M.J. Lucille Shaw of the Superior Court of Justice, sitting with a jury, on December 12, 2018.
I. OVERVIEW
1The appellants, Jason Deidun and Dana Bernard, are common law spouses. They were charged with various offences arising out of their alleged operation of an escort business with Ashley Bernard, who is Ms. Bernard’s adult daughter. Ashley2 was originally also jointly charged, but she pleaded guilty to one of the charged offences shortly before the appellants’ trial and testified against them as a Crown witness.
2After a four-week jury trial, the appellants were each found guilty of two counts of procuring a person to offer or provide sexual services for consideration, and two counts of receiving a material benefit from sexual services: Criminal Code, R.S.C. 1985, c. C-46, ss. 286.2(1) and 286.3(1). They appeal their convictions on the basis that the jury was misdirected about the essential elements of these offences.3
3The s. 286.1(1) and s. 286.3(1) offences were added to the Criminal Code in 2014, and there is now extensive appellate jurisprudence addressing their essential elements: see e.g., R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225; R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145; R. v. Ochrym, 2021 ONCA 48, 400 C.C.C. (3d) 358, leave to appeal refused, [2021] S.C.C.A. No. 106; R. v. N.S., 2022 ONCA 160, 169 O.R. (3d) 401, leave to appeal refused, [2022] S.C.C.A. No. 281; R. v. Kloubakov, 2025 SCC 25, 505 D.L.R. (4th) 197.
4Unfortunately, the trial judge did not have the benefit of this case law when she charged the jury in December 2018. As a result, her instructions misdirected the jury on several important legal points. These errors were not corrected at any other points in the charge. In my view the charge, read as a whole, did not equip the jurors with an accurate understanding of the law that they had to apply to decide the case: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 36-37. As I will explain, I am not persuaded that the appellants’ convictions can be upheld in the face of this misdirection by invoking the curative proviso under s. 686(1)(b)(iii) of the Criminal Code. I would accordingly allow the conviction appeals, set aside both appellants’ convictions, and order a new trial.
II. background facts
5It was common ground at trial that in the summer of 2016 Ashley arranged for two of her friends, the complainants A.O. and D.H., to both come stay at the appellants’ home, and that for some time thereafter Ashley involved herself in the complainants’ sale of their sexual services. This went on for approximately five or six weeks in A.O.’s case, but only for about two weeks in D.H.’s case.
6Ashley and the complainants would stay at the appellants’ home on weekends, and during the week they would go to hotels, where the complainants would engage in sex work. Ashley never sold her own sexual services, but she would post advertisements for the complainants, exchange texts with potential clients, and meet with the clients when they arrived at the hotel.
7The main dispute at trial was the extent to which the appellants involved themselves in the complainants’ sex work. Ashley maintained that the appellants ran the escorting business and forced her to participate, and denied receiving any money from the complainants’ sex work. However, before the appellants’ trial she pleaded guilty to a charge of receiving a material benefit, and was awaiting sentencing when she testified. The jurors were given a Vetrovec instruction directing them to approach Ashley’s evidence “with the greatest care and caution”: Vetrovec v. The Queen, [1982] 1 S.C.R. 811.
8Although A.O. and D.H. both testified that they initially became involved in the business through Ashley and that they dealt mainly with her, they also described having initial meetings with the appellants to discuss how they would engage in sex work. Both complainants testified that the appellants then did various things to facilitate their sex work activities. For instance, A.O. testified that it was usually Dana who booked their hotel rooms, and both A.O. and D.H. maintained that Jason sometimes drove them and Ashley to the hotels.
9The appellants both testified and denied any involvement in the complainants’ sex work. They explained that they believed that A.O. and D.H. were friends of Ashley’s who she had invited to come stay at their house, and denied knowing that Ashley was arranging for them to engage in sex work. Jason denied ever driving the complainants to hotels or going to hotels to pick up money, and maintained that the only money he ever received was for Ashley’s rent. Dana acknowledged having booked hotel rooms a few times in the summer of 2016 for innocuous reasons, but denied ever posting sex work ads for the complainants or knowingly booking hotel rooms for them to use for sex work.
10The Crown adduced cell phone records that showed frequent calls between Jason’s and Ashley’s phones during the relevant time periods. Cell tower records sometimes placed Jason’s phone in close geographic proximity to the hotels where Ashley and the complainants were staying. The records from Dana’s phone revealed web searches, emails, and messages that appeared to be related to escorting. Both appellants suggested that Ashely or the complainants might have sometimes used their phones without their knowledge or permission.
III. analysis
1. The procuring counts
11Section 286.1(1) of the Criminal Code makes it an offence to obtain sexual services for consideration. Section 286.3(1) then provides:
286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
12Although the s. 286.3(1) offence is commonly referred to as the “procuring offence”, it actually has two distinct modes of commission, only the first of which requires proof of “procuring” in a technical legal sense (“to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged”: R. v. Deutsch, [1986] 2 S.C.R. 2, at pp. 26-27). As Hoy A.C.J.O. explained in Gallone, at para. 59:
[T]here are two modes of committing the actus reus of the procuring offence:
The accused “procures a person to offer or provide sexual services for consideration”; or
The accused “recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person.”
13In this case, the appellants were jointly charged with three counts alleging that they committed offences under s. 286.3(1). Count 1, which applied to A.O., merged both modes of committing the s. 286.3(1) offence into a single charge. However, the two counts that applied to D.H. split the two modes of committing the s. 286.3(1) offence into separate counts: Count 3 alleged that the appellants had “procured” D.H., while Count 4 was particularized to track the language of the second mode of commission.
14For several reasons, it is unnecessary to consider whether the jury was properly instructed about the procuring mode of committing the s. 286.3(1) offence. Although Count 1 was drafted to include the procuring mode, the jury was instructed that the Crown was not relying on the procuring mode in relation to A.O. With respect to D.H., where the procuring mode had been charged separately in Count 3, the jury acquitted both appellants on this count. Accordingly, I will focus on the trial judge’s instructions regarding the second mode of committing the s. 286.3(1) offence.
15The trial judge directed the jury to consider two questions in relation to this mode. With respect to Count 1 – the charge relating to A.O. – she instructed the jury:
The first question – has the Crown proven beyond a reasonable doubt that Mr. Deidun and/or Ms. Bernard did recruit, hold, conceal or harbour [A.O.], or that Mr. Deidun and/or Ms. Bernard exercised direction or influence over [A.O.’s] movements?
And the second question – has the Crown proven beyond a reasonable doubt that Mr. Deidun and/or Ms. Bernard did so for the purpose of facilitating an act of prostitution by [A.O.]?
She later instructed the jurors to consider these same two questions when dealing with Count 4, which related to D.H.
16The trial judge then provided the jury with brief definitions of the terms “procure”, “recruit”, “hold”, “conceal”, and “harbour”. Although Ms. Stephens takes issue with the correctness or completeness of some of these definitions, I will focus on the trial judge’s instructions regarding the essential elements of control, direction or influence.
17The trial judge told the jury:
Control is exercising power or influence, or to restrict activity; To exercise direction over someone is to instruct with authority, to cause someone to take a particular course, or to govern; and, Influence means to have influence on: the control, direction or influence over must relate to the movements of the person involved.
Direction or influence would include such matters as being told where to go, posting advertisements for sexual services, providing transportation or lodgings, providing financial support to carry out certain behaviour, and what to do and what to charge.
It is not necessary for the Crown to prove all or even several of these actions. Any one of these requirements is sufficient. Not all of you have to agree on the same requirement as long as all of you have agreed that the Crown has proven one of these requirements beyond a reasonable doubt. [Emphasis added.]
18In my view, the jurors might well have understood from these instructions that it was sufficient for the Crown to prove that the appellants had each performed at least one of the actions the trial judge had listed as examples of “direction or influence” – for instance, booking a hotel room for the complainants; driving them to a hotel; or providing them with advice about how to conduct their sex work. It may be, as the Crown argues, that the trial judge actually meant the phrase “these requirements” to refer back to the essential elements of exercising control, direction or influence. However, the jury might reasonably have believed that the trial judge was instead talking about the conduct she had just identified as constituting “direction or influence”.
19If this is indeed what the jurors understood, it was incorrect in several respects. Most importantly, in Gallone this court adopted Rochon J.A.’s observation in Urizar c. R., 2013 QCCA 46, [2013] R.J.Q. 43, at para. 74 that the phrase “‘exercises control, direction or influence over the movements of a person’ generally suggests a situation that results from a series of acts rather than an isolated act”: Gallone, at para. 48. Hoy A.C.J.O. then added, at para. 50:
In my view, the essence of what the Court of Appeal of Quebec adds here is that all these residual terms – “exercises control, direction or influence” – evoke a scenario in which a person, by virtue of her or his relationship with the complainant, has some power – whether physical, psychological, moral or otherwise – over the complainant and his or her movements. [Emphasis added.]
20This court later expanded on this last point in Ochrym, at para. 33, explaining:
Had Parliament intended s. 286.3(1) to criminalize any conduct affecting a complainant’s movements that facilitates the provision of sexual service for consideration, it would have done so more clearly. For example, s. 286.4 provides that it is an offence to knowingly advertise an offer to provide sexual services for consideration. Parliament did not provide that driving a sex worker to a motel or booking the motel where the worker provides sexual services for consideration is an offence. Rather, … Parliament used terms which require consideration of whether because of the relationship between the accused and the complainant, the accused was in a position or had the ability to, and did, exercise control, direct or influence the movements of a person who provides sexual services for consideration. Some regard must be had to the nature of the relationship between the accused and the complainant. [Emphasis added.]
21The jurors in this case were never told that the essential elements of the s. 286.3(1) offence generally required proof of more than an isolated act, nor were they told that when deciding whether the appellants had exercised control, direction, or influence over the complainants’ movements, the jurors had to consider the nature of the appellants’ relationship with the complainants, and assess whether this relationship gave the appellants some form of power over the complainants.
22The jurors in this case were faced with conflicting testimony, both about the nature and extent of the appellants’ relationships with the two complainants, and about what specific actions the appellants performed that facilitated the complainants’ sex work. Depending on what evidence the jurors accepted, it was not a foregone conclusion that they would necessarily have been satisfied that the appellants’ relationships with either or both of the complainants gave them “some power – whether physical, psychological, moral or otherwise – over the complainant[s] and [their] movements”: Gallone, at para. 50. However, the jurors were never told that this was something they had to consider.
23I do not accept the Crown’s argument that the trial judge’s instructions were functionally adequate in the context of the case because the appellants denied having done anything to knowingly facilitate the complainants’ sex work. The jury was not faced with the choice of either entirely accepting the appellants’ evidence or wholly accepting the testimony of the three main Crown witnesses, which was mutually contradictory in some respects. Rather, the jury was entitled to accept some, all, or none of the evidence from any of these witnesses. Different jurors might have accepted different parts of the Crown witnesses’ evidence, and rejected different aspects of the appellants’ testimony. Indeed, the jurors might reasonably have concluded that they did not need to resolve the conflicting evidence about how much the appellants had done to facilitate the two complainants’ sex work, as long as they were all satisfied that each of the appellants had done at least one of the things that the trial judge had identified as examples of exercising direction or influence over the complainants’ movements.
24I also do not agree that the gap in the trial judge’s instructions can be seen as having been filled by Crown counsel’s closing address, for three main reasons. First, “counsel’s closing arguments cannot replace an accurate and sufficient instruction on the law”: Abdullahi, at para. 65 (italics in original). Second, while Crown counsel urged the jury to find that both of the appellants had done multiple things to facilitate the two complainants’ sex work, she also suggested that it was not necessary for the Crown to prove this. For instance, Crown counsel told the jury: “You can be guilty of the [procuring] offence by transporting people to the hotels with knowledge that you are helping them go there in order to escort.” Third, Crown counsel never told the jury that the question of whether the appellants had exercised control, direction or influence over the complainants’ movements required consideration of whether their relationship with the complainants gave them some form of power over the complainants’ movements. In my view, the Crown’s closing address would have reinforced rather than corrected the erroneous understanding of the law that the jury might have formed from the trial judge’s instructions.
25In summary, I would hold that the trial judge misdirected the jury about what the Crown needed to prove in order to establish the actus reus of the second mode of commission of the s. 286.3(1) offence, as charged in Counts 1 and 4. This makes it unnecessary for me to address the appellants’ further argument that the trial judge also erred in her instructions about the mental element of this offence.
2. The material benefit counts
26The appellants were jointly charged with two counts of committing an offence under 286.2(1) of the Criminal Code, which bars people from receiving “a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1)”. Although neither count was particularized to specify the source of the material benefit that the appellants were alleged to have received, each count spanned different time periods, and the jury was instructed to treat Count 2 as relating to A.O. and Count 5 as relating to D.H.
27The prohibition in s. 286.2(1) is subject to the exceptions set out in s. 286.2(4), which are in turn subject to the “exceptions to the exceptions” listed in s. 286.2(5): see Kloubakov, at paras. 27-30. Among other things, s. 286.2(5)(d) bars defendants from relying on the exceptions in s. 286.2(4) if they have “engaged in conduct, in relation to any person, that would constitute an offence under section 286.3”.
28The trial judge told the jury that the material benefit offence had “a number of exceptions”, but that “[n]one of the exceptions apply in this case”. She later directed the jury that they could only find the appellants guilty of Counts 2 or 5 if they first found them guilty of the procuring charges, stating:
If you are not satisfied beyond a reasonable doubt on Counts #1, #3 and #4, you would not consider this offence as a precondition of this count is that it relates to an offence under s. 286.1(1). If you are [not] satisfied that Mr. Deidun and/or Ms. Bernard was involved in procuring or exercising control over [A.O.] or [D.H.], there is no basis to find that he or she received a material benefit and they would be found not guilty of Counts 2 and 5.
29Counsel on this appeal agree that these instructions were legally flawed in at least one respect, since a person can commit the material benefit offence in s. 286.1(1) even if they are not guilty of the procuring offence in s. 286.3(1). It was thus incorrect for the trial judge to instruct the jury that the appellants’ liability on counts 2 and 5 depended on their first being found guilty on the procuring charges in Counts 1, 3 or 4.
30I agree with the Crown that this misdirection would have caused the appellants no prejudice – and, indeed, could have benefitted them – if the jury had been correctly instructed about the essential elements of the s. 286.3(1) procuring offence. However, in the circumstances of this case the errors in the jury charge with respect to the procuring offences charged in Counts 1 and 4 undermine the integrity of the jury’s verdicts on the material benefit charges in Counts 2 and 5.
31The root of the problem is that since the trial judge told the jury that the appellants could only be found guilty of the material benefit charges if they were also guilty of the procuring offence charges, she did not instruct the jury about the exceptions to the material benefit offence in s. 286.2(4). She presumably did so because s. 286.2(5)(d) would have barred the appellants from relying on the exceptions if they were found to have committed the procuring offence. However, a properly instructed jury that found one or both of the appellants not guilty of the procuring charges would have had to go on to consider whether the Crown had disproved all of the applicable s. 286.2(4) exceptions.
32Some of these exceptions were potentially applicable on the evidence. For instance, the trial judge had instructed the jury that there was no evidence that Dana Bernard had received any money directly from either of the complainants. In her reasons for sentence, she concluded that the jury’s findings that Dana had received a material benefit from the complainants sex work must have been based on the evidence that the appellants had received rent money “collected by [Ashley] from the sex work performed by the complainants”. If a properly instructed jury had found Dana not guilty of the procuring offence charges in Counts 1 and 4, the jury would have had to go on to consider whether Dana had collected the rent money “in the context of a legitimate living arrangement” with Ashley and/or the complainants, or whether the amount of rent collected was “proportionate to the value” of the rental: ss. 286(4)(a) and (d).
33Jason’s situation was somewhat different, insofar as there was evidence that he had received cash directly from Ashley and/or the complainants. However, the jury might not have accepted this evidence, and could have found Jason guilty of the material benefit charges on the same basis that it apparently found Dana guilty – namely, that he had also received rent payments from Ashley that were derived from the complainants’ sex work.
34Subject to the potential application of the curative proviso, I would accordingly conclude that the misdirections in the jury charge with respect to the procuring offences in Counts 1 and 4 also undermine the appellants’ convictions on the material benefit charges in Counts 2 and 5.
3. The curative proviso
35The Crown argues that notwithstanding any errors in the jury instructions, the appellants’ convictions should be upheld pursuant to the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. The Crown does not suggest that the errors were minor or trivial, but argues that the evidence against the appellants was overwhelming: see e.g., R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 28-31.
36While there was evidence upon which a reasonable jury, properly instructed, could have found both appellants guilty on all counts, I do not agree that this is a case where the evidence was “so overwhelming that any other verdict but a conviction would be impossible”: Khan, at para. 31. The Crown’s case depended in large part on the jury finding Ashley and the complainants credible, and rejecting the appellants’ own exculpatory testimony. While the cell phone and cell tower records may have cast doubt on some aspects of the appellants’ testimony, the weight the jury gave to this evidence depended on what they made of the appellants’ explanations for it. Moreover, even if the jurors entirely rejected the appellants’ testimony, it did not automatically follow that they would have wholly accepted the evidence of Ashley – a Vetrovec witness – and/or the complainants, some of which was mutually contradictory. I am not persuaded that this is a case where the proviso can properly be applied: see e.g., R. v. Perkins, 2016 ONCA 588, 339 C.C.C. (3d) 438, at para. 97.
IV. Disposition
37In the result, I would allow the appellants’ conviction appeals and order new trials on Counts 1, 2, 4 and 5 of the indictment.
Released: March 25, 2026 “J.M.C.”
“J. Dawe J.A.”
“I agree. J. Copeland J.A.” “I agree. L. Madsen J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
- Since Dana Bernard and Ashley Bernard have the same last name, I will refer to them and to Mr. Deidun by their first names. I mean no disrespect by this.
- The appellants have both finished serving their custodial sentences, and both have abandoned their sentence appeals.