WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, 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).
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
CITATION: R. v. A.A., 2015 ONCA 558
DATE: 20150729
DOCKET: C57716 & C58117
Watt, van Rensburg and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Appellant/
Respondent by way of cross-appeal
and
A.A. (a young person)
Respondent/
Appellant by way of cross-appeal
Megan Stephens, for the appellant/respondent by way of cross-appeal
James D. Harbic and Robert Harbic, for the respondent/appellant by way of cross-appeal
Heard: December 2, 2014
On appeal from the acquittals and cross-appeal from the convictions entered by Justice Ann M. Alder of the Ontario Court of Justice, dated September 5, 2013.
Watt J.A.:
[1] A.A. and G.M.S. met in a park. Both were 16. They began a relationship almost immediately. A parasitic one. G.M.S. danced in strip clubs for money. A.A. got the money. All the money. In this way, A.A. said, they could have a good life, a better life than either had when they met.
[2] The good life never arrived. The relationship ended. The end came when A.A. was arrested on more than a dozen charges arising out of the things that G.M.S. said happened during their relationship.
[3] At trial before a judge of the Youth Court, A.A. was acquitted of some offences and convicted of others. The Crown appeals the acquittals. A.A. appeals the convictions. The Crown succeeds. A.A. fails. These reasons explain why.
THE BACKGROUND FACTS
[4] The relevant events span a period of about four months during the summer and fall of 2011. The grounds of appeal advanced do not require a lengthy recital of the circumstances underlying the alleged offences.
The Principals
[5] G.M.S. had a troubled relationship with her parents, who were divorced. She had a history of anxiety problems. She had been prescribed medication for not only anxiety, but also depression and sleep issues. She lived with her father and was enrolled in school.
[6] A.A. lived with his mother and some of his siblings.
The Meeting in the Park
[7] In August, 2011, A.A. and G.M.S. met in a park. They talked. Soon, they discovered a common bond – each had recently suffered the loss of a loved one. G.M.S. also complained about her home life. She did not want to live at home any longer.
[8] The discussion turned to dancing. A.A. said that he had heard that G.M.S. would be dancing for a mutual friend. G.M.S. responded that those plans had been abandoned. A.A. professed his love for G.M.S. He said he had always loved her and would never let anything happen to her. A.A. then asked G.M.S. whether she loved him and whether she would dance for him.
[9] A.A. explained that if G.M.S. danced for him they could have the life they wanted. They would be together and retire in ten years. G.M.S. felt that she had finally found somebody who wanted her and would protect and look after her forever.
[10] At the end of their meeting in the park, G.M.S. understood that she and A.A. would be together. She agreed to dance in strip clubs so that she and A.A. could have their life together.
The Dancing Begins
[11] Shortly after the meeting in the park, A.A. wanted G.M.S. to go to a club. G.M.S. demurred. She said she was not feeling well. She did not want to start dancing immediately.
[12] A.A. and his friend, M.J., took G.M.S. to a store that sold “dancer stuff”. A.A. chose the outfit for G.M.S. M.J. paid for it.
[13] G.M.S. danced first at Pigale, a Gatineau club. A.A. dropped her off at the club. She used her older sister’s identification. She earned $60 from private dances. She also performed on stage but received no money for this.
[14] A booker at the club told G.M.S. to return after she had gained some dancing experience. G.M.S. called A.A. to pick her up. When A.A. arrived, G.M.S. gave him the $60 she had earned. A.A. said that he was proud of her. He told her: “you did so good”.
The Silver Dollar
[15] After a club refused to accept her identification, A.A. and M.J. took G.M.S. to the Silver Dollar. G.M.S. described the Silver Dollar as a “disgusting” place but danced there. During private dances she was asked to remove and did remove her top. The patrons touched her. She also danced on stage. At the end of the evening, A.A. and M.J. picked her up and drove her home. When she turned over her earnings to A.A., he said “only $40?”.
[16] For the following two weeks, G.M.S. danced at the Silver Dollar every day the club was open. A.A. picked her up at home in M.J.’s car and drove her to the club. She earned $200 to $400 per night. She turned the money over to A.A. who, with M.J., picked her up at the club and drove her back to her father’s place. A.A. told G.M.S. that he was “so happy” and that she was doing better and better.
[17] The only time A.A. and G.M.S. spent together was during the drives to and from the Silver Dollar.
[18] About two weeks into her tenure at the Silver Dollar, a bouncer told G.M.S. that people were skeptical that she was the age shown on her older sister’s identification. G.M.S. panicked. She was not sure where she would go. She “needed to work”.
[19] G.M.S. told A.A. about her conversation with the bouncer. A.A. promised her new identification. They went together to have passport photographs taken. A.A. used $600 from G.M.S.’s earnings to get her two new sets of identification.
The Barefax Deception
[20] A.A. wanted G.M.S. to dance at Barefax, a club she considered an upgrade from the Silver Dollar, but not a place she wanted to work. A.A. dropped her off at the club. She pretended to enter the club but did not. Instead, she went home. In order to get money to give to A.A., as if she had earned it dancing, G.M.S. withdrew money from her father’s credit card account.
Dancing in Toronto and Montreal
[21] A.A. and M.J. decided that G.M.S. should go to Montreal and Toronto to become a better dancer. M.J. took G.M.S. to Montreal and then to Toronto. In Toronto, she earned $2,000, which she gave to M.J. to turn over to A.A. G.M.S. and A.A. texted each other daily. A.A. always asked how much she had made. When G.M.S. told him, A.A. said “good job”.
The Failed Exchange
[22] When G.M.S. returned from Toronto with M.J., he explained to her that her situation would be improved if she danced for him. M.J. asked her to choose between him and A.A. G.M.S. chose A.A. M.J. punched G.M.S. in the face and threw her things out of his car. A.A. told G.M.S. to get into the car with another friend, Aleck, who would be joining him in picking up and dropping off G.M.S. Aleck had a girl, Natasha, who would be working for him.
[23] After the episode with M.J., A.A., G.M.S. and Aleck went to a motel to sleep.
The Motel
[24] Around the end of September, 2011, G.M.S. left home and moved into the motel. Soon, Natasha joined her. The nightly routine was for G.M.S. to dance at the Silver Dollar and to turn over her earnings, $300 to $600, to A.A. who would pick her up and drop her off at the motel. Sometimes, her shifts lasted 14 hours.
[25] A.A. gave G.M.S. money to buy food at Tim Hortons. She and Natasha would deposit the change from their meals in a jar in the room at the motel. A.A. would empty the jar as it filled and ask “are you trying to run away or something?”
[26] G.M.S. stayed at the motel when she was not dancing. She severed contact with her parents. A.A. told her that he was her family and that she was to stay at the motel. She stopped attending school. Aleck and A.A. slept at the motel about five times a month.
The Request for “Extras”
[27] A.A. encouraged G.M.S. to do “extras” to earn more money. He told her that she should charge $100 for a blow job or sex. A customer at the Silver Dollar paid her $100 for vaginal sex. She gave the money to A.A.
[28] A.A. also asked G.M.S. to give his cousin a lap dance and have sex with him for $200. The cousin was unable to have sex but paid A.A. A.A. told G.M.S. that he needed the money to pay for the motel because G.M.S. had only earned $50 that day.
The Physical Abuse
[29] During her stay at the motel, A.A. began to hit G.M.S. regularly, often when she talked back to him. On her birthday, A.A. hit G.M.S. repeatedly on her head with his iPhone.
[30] A.A. and Aleck kept weapons at the motel and also at a house in Gatineau that Aleck rented later. The weapons included a paintball gun and several tasers. At A.A.’s urging, Aleck shot G.M.S. twice with a paintball gun.
The First Return Home
[31] After about a month at the motel and regular dancing at the Silver Dollar, G.M.S. learned that A.A. had brought in another girl to do the same thing. G.M.S. left the motel. She took a cab to the Silver Dollar. Instead of entering the club, she took a bus home. She stayed at home for a week. A.A. phoned several times each day. He pleaded for G.M.S. to return.
[32] G.M.S. spoke to A.A. on the telephone. She explained that she left because A.A. had two girls working for him. A.A. assured G.M.S. that she was his “bottom bitch”, the one he loved and planned to marry. The other girl, he said, was just for extra money. G.M.S. told A.A. to choose between her and the new recruit. A.A. said he would choose her.
Back to Dancing
[33] After a week at home, G.M.S. returned to A.A. and Aleck. She was convinced that A.A. finally realized that she was going to be with him forever and that he was going to change and not hurt her. She stayed at Aleck’s place in Gatineau. She returned to dancing immediately. This time, she danced at the Barefax where A.A. thought she could earn more money. G.M.S., Natasha and a new girl who worked for Aleck slept in sleeping bags on the floor. Aleck and A.A. slept in the bed.
[34] One night, G.M.S. went home on the pretext of a family emergency. A.A. texted her, asking her when he could pick her up for work. A.A. told her not to do that again and accused her of being a slacker while others, like Natasha, worked. G.M.S. returned to the Gatineau house the same night.
The Second Return Home
[35] In mid-November, 2011, G.M.S. got kicked out of the Barefax because she was chronically late. She went home and stayed there for a month. She told A.A. that her father had died and that she would be receiving an inheritance. She and A.A. communicated frequently. A.A. asked G.M.S. repeatedly when she could return to work and when she would be getting her inheritance.
[36] Sometime later, G.M.S. told A.A. that she would not be receiving an inheritance. She also told him that she realized that he would not want to be with her anymore. A.A. told G.M.S. they could stay together but she would have to work again.
[37] When asked why she left in November, G.M.S. explained that, despite his promises, A.A. had not changed his ways. He expected her to work long hours to make more money and would not allow her to carry her own money because she might use it to run away or spend it on “stupid stuff”.
The End
[38] A.A. wanted G.M.S. to accompany him, Aleck and Natasha to Toronto before Christmas, 2011. G.M.S. agreed to go. She wanted to see whether A.A. had changed. She also wanted to stop Natasha from making “the biggest mistake in her life”. A.A. told G.M.S. that she would make more money dancing in the clubs in Toronto.
[39] On December 28, 2011, Aleck, A.A., G.M.S. and Natasha drove to Toronto in Aleck’s car. Shortly after their arrival at a hotel, G.M.S. realized that nothing had changed. Despite promises to the contrary, A.A. hit her several times after she teased him about wanting to sleep with Aleck. He hit her hard enough to draw blood. A.A. told her that she would have to work the next day.
[40] Early the next morning, G.M.S. texted the police. She told an officer from the Ottawa Police Service, with whom she had spoken earlier, that she was scared because she was going to have to return to the clubs. Two local police officers met G.M.S. outside the hotel and took her back to Ottawa.
[41] Later that morning, the police arrested Aleck and A.A. at the hotel.
THE TRIAL PROCEEDINGS
[42] A.A.’s trial took place in Youth Court on an information that contained 16 counts. The trial judge found A.A. guilty of two counts of assault with a weapon (including one count of counselling Aleck to commit the offence), a single count of assault and a single count of failure to comply with an undertaking. The principal counts of which A.A. was found not guilty were trafficking of a person under 18, receiving a material benefit from trafficking of a person under 18 and living on the avails of prostitution.
THE APPELLATE PROCEEDINGS
[43] The Crown appeals the acquittals of A.A. alleging legal errors in the trial judge’s reasoning. A.A. appeals his convictions on the basis that the trial judge’s findings of fact that led to her conclusions of guilt were flawed.
[44] I will first consider the Crown’s appeal from A.A.’s acquittals on the counts of trafficking of a person under 18 (s. 279.011(1) of the Criminal Code, R.S.C. 1985, c. C-46), receiving a material benefit from trafficking of a person under 18 (s. 279.02 of the Code) and living on the avails of G.M.S.’s prostitution (s. 212(2) of the Code). While not raised by the parties, I will also offer some observations on the relationship between the definition of exploitation under s. 279.04 and the purpose requirement under ss. 279.011(1). At the conclusion of that discussion, I will turn to A.A.’s appeals from his convictions of assault, assault with a weapon and breach of an undertaking.
THE APPEAL FROM ACQUITTAL
[45] Several paragraphs in the lengthy reasons of the trial judge provide the background essential for an appreciation of the grounds of appeal urged by Crown counsel.
The Findings of the Trial Judge
(a) Trafficking of a Person under 18 (s. 279.011(1))
[46] The trial judge concluded that the offence of s. 279.011(1) consisted of two essential elements:
• the exercise of control, direction or influence over the movements of a person under 18; and
• the purpose of exploiting or facilitating the exploitation of that person under 18.
[47] The trial judge found that the first essential element was proven on the basis that A.A. had exercised direction and influence over the movements of G.M.S:
[174] While I am not satisfied the accused exercised control, I am satisfied that the Crown has proved beyond a reasonable doubt, the first element listed above in that the accused did exercise direction and influence over the movements of G.M.S. who was under 18 years of age at the time. I find her evidence on these elements to be credible. It is compatible and in harmony with the rest of the evidence particularly the text messages which corroborate the type of relationship G.M.S. and A.A. had and demonstrate the direction and influence he had on her movements.
[48] The trial judge described the second essential element, that of purpose, in these terms:
[183] The word exploitation in section 279.011 does not possess its general or common definition, which would simply be to use someone in an unjust manner. If that was the definition to be applied there is no doubt A.A. exploited G.M.S. but in section 279.011 the word has two very specific legal definitions: one for providing labour or a service and one for organ or tissue removal. It is of course the first one that we are concerned with in this case. The labour or service involved is dancing in the clubs.
[184] It requires that a person cause another person 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 the labour or service. It is a very narrow definition more so than what is required for organ or tissue removal and more than what is required in section 212(1)(h) in regards to prostitution.
[49] The trial judge’s conclusion on the issue of purpose appears as follows:
[185] I am not satisfied that the Crown has proved that element of the offence beyond a reasonable doubt. I am not satisfied that A.A. caused G.M.S. to dance by engaging in conduct that in all the circumstances could reasonably be expected to cause her to believe that her safety or the safety of a person known to her would be threatened if she failed to provide the labour or service.
[192] The Court must be satisfied that in all the circumstances, A.A.’s conduct caused G.M.S. to believe her safety would be threatened if she did not dance and while it might, I am not satisfied beyond a reasonable doubt that it could reasonably be expected to in these circumstances given her evidence outlined above.
[50] The trial judge made the following findings in deciding that A.A.’s behaviour did not amount to exploitation within the meaning of s. 279.04:
[185] I am not satisfied that the Crown has proved the element of the offence beyond a reasonable doubt. I am not satisfied that A.A. caused G.M.S. to dance by engaging in conduct that in all the circumstances could reasonably be expected to cause her to believe that her safety or the safety of a person known to her would be threatened if she failed to provide the labour or service.
[186] What A.A. did was use deception, mind games to ensure that G.M.S. danced and continued to dance. He preyed on a vulnerable, confused young woman, promising her his love and devotion to get her to dance and give him the money she made. He made it such that she wanted to please him, she wanted him to protect her and to love her. However, I am not satisfied he caused her to dance because she believed her safety was threatened if she did not.
[187] She explained it when asked if she could leave anytime, whenever she wanted. She said, “yes he did say I could leave, but it – it was more psychological that he kept me.”
[188] There is little or no evidence to prove this element beyond a reasonable doubt. Her concern for her safety and that of others arises when she talks to the police, her fear appears to be related to reprisals for speaking to the police not to what would have happened if she did not dance.
[189] She never testified she danced because she believed her safety would be threatened, she danced because she was deceived. When asked why she danced she said “it was that I was having a lot of problems at home and he came in saying that he would look after me” … Deception may lead to exploitation as defined in s. 279.04 but it is not automatic it is but a factor.
[51] While the trial judge was satisfied that there were some incidents of violence, she found that G.M.S. never related any violence to dancing or not dancing. She concluded that while what A.A. did was “morally deplorable” and was “a form of exploitation,” it did not meet the definition of exploitation under s. 279.04.
(b) Living on the Avails of Prostitution (s. 212(2))
[52] A single paragraph explains why the trial judge found A.A. not guilty of living on the avails of prostitution:
[200] An essential element of the offence is of course that G.M.S. was engaged in prostitution. While there is evidence that on one occasion, she engaged in an act of prostitution that does [not] make her a prostitute. Therefore the presumption that a person who lives with or is habitually in the company of a prostitute is in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution is not applicable in this case. While I accept that she gave A.A. the money from the ‘extra’ that is not sufficient to support a conviction for this offence. A.A. is therefore acquitted of count 8.
Ground #1: The Trial Judge’s Interpretation of Exploitation
[53] The first ground of appeal alleges that the trial judge erred in her interpretation and application of the statutory language in s. 279.04, which defines exploitation, and that this tainted her analysis on the counts of trafficking of a person under 18 and the receipt of a material benefit from that trafficking.
The Statutory Provisions
[54] Section 279.011(1) defines the trafficking offence in these terms:
Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of eighteen years, or exercises control, direction or influence over the movements of a person under the age of eighteen years, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence.
[55] The material benefit offence in s. 279.02 provides:
Every person who receives a financial or other material benefit, knowing that it results from the commission of an offence under subsection 279.01(1) or 279.011(1), is guilty of an indictable offence.
[56] Section 279.04(a) describes when one person exploits another. At the time of the offences charged, s. 279.04(a) was in these words:
For the purposes of sections 279.01 to 279.03, a person exploits another person if they
(a) cause them to provide, or offer to provide, labour or 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.
[57] In 2012, s. 279.04 was amended to renumber former s. 279.04(a) as s. 279.04(1) and add, as s. 279.04(2), an illustrative list of factors to assist in a determination of whether one person has exploited another. The new provision is in these terms:
(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.
The Definition of Exploitation under s. 279.04
(a) The Arguments on Appeal
[58] For the Crown, Ms. Stephens makes two principal arguments:
i. the trial judge erred in adopting an unduly narrow interpretation of exploitation in s. 279.04, which erroneously excluded consideration of a person’s psychological security; and
ii. the trial judge erred in applying a subjective standard in assessing exploitation under s. 279.04.
[59] The trial judge, Ms. Stephens says, failed to consider the intention of Parliament in enacting s. 279.04. The legislative history of the provision evidences an intention that exploitation be interpreted broadly and that it includes a consideration of the psychological security of a person. The trial judge also failed to consider that a later amendment was not intended to change the law, rather only to clarify it. The trial judge’s interpretation also departed from the prevailing jurisprudence and failed to give effect to the presumption of consistent expression.
[60] In addition, Ms. Stephens submits the trial judge erred in applying a subjective interpretation, rather than an objective standard, in assessing whether there was exploitation under s. 279.04. This fails to give effect to the intention of Parliament and is inconsistent with the jurisprudence and the approach taken in relation to the cognate offence of uttering threats. While the trial judge properly stated the test under s. 279.04, she limited her reasons to the complainant’s subjective experiences.
[61] For A.A., Mr. Harbic says the trial judge made no error in her interpretation of exploitation. The trial judge’s characterization of the definition of exploitation under s. 279.04 as being “very narrow” simply distinguished the normal, everyday meaning of exploitation from the statutory one that appears in s. 279.04. This interpretation adhered to rather than departed from Parliament’s intention in enacting the section and is consistent with the controlling jurisprudence.
[62] Further, Mr. Harbic submits, the trial judge carefully analysed the evidence adduced at trial, fully appreciated its substance and effect and concluded that Crown counsel had not proven the offences charged. The trial judge correctly applied an objective test in determining whether there was exploitation. She also considered deception as a factor, but found that it was not dispositive of the issue of exploitation, as well as the evidence of coercion and use of force. In the end, the trial judge found the case for the Crown wanting. Deference is her due.
(b) A Question of Law Alone
[63] Before setting out the relevant principles informing this ground of appeal, a brief reminder about the Crown’s right of appeal from acquittal is apt. Under s. 676(1)(a) of the Code, the Crown is entitled to appeal an acquittal provided any ground of appeal raised involves a question of law alone.
[64] In general terms, the interpretation of a statute, as for example a determination of the essential elements of an offence or the meaning of a term that is an integral part of an essential element involves a question of law alone: R. v. Johnson, 1973 198 (SCC), [1975] 2 S.C.R. 160, at p. 171.
[65] Legal error also occurs when a trial judge assesses an item or several items of evidence on the basis of an erroneous legal principle: R. v. H.(J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 29-30. On the other hand, an error in assessing the weight to be assigned to an item of evidence, or to the evidence as a whole, to determine whether it meets the standard of proof required of the Crown is an error of fact, not of law: H.(J.M.), at para. 39; and R. v. Powell, 2010 ONCA 105, 251 C.C.C. (3d) 475, at para. 40.
(c) The Governing Principles
[66] This ground of appeal raises an issue of statutory interpretation.
[67] The basic rule of statutory interpretation is that the words used are to be read in their entire context in their grammatical and ordinary sense harmoniously with the scheme and object of the Act and the intention of Parliament: Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (LexisNexis, 2008), at p. 1; Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; and R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 16. If possible, every part of the provision should be assigned meaning: Sullivan, at p. 210; and Hutchinson, at para. 16.
[68] A second principle of statutory interpretation is the presumption of consistent expression. This principle holds that legislatures use language carefully and consistently so that, unless the contrary appears, the same words have the same meaning within a statute and different words have different meanings: Sullivan, at pp. 214-215; and R. v. Zeolkowski, 1989 72 (SCC), [1989] 1 S.C.R. 1378, at p. 1387.
[69] Finally, when a statute is amended by the legislature, we presume that the amendment was made for an intelligible purpose, such as clarifying or correcting a mistake in the enactment or change in the law: Sullivan, at p. 579. Section 45(2) of the Interpretation Act, R.S.C. 1985, c. I-21 makes it clear that an amendment is not deemed to involve a declaration that the pre-amendment law was or was considered by Parliament to be different from the post-amendment law.
(d) The Principles Applied
[70] 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. On a straight-up reading of this definition of exploitation, 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.
In essence, for there to be exploitation, an accused’s conduct must give rise to a reasonable expectation of a particular state of mind in the victim.
[71] In addition, and applying the presumption of consistent expression, the term “safety” that appears in s. 279.04 is not limited to the state of being protected from physical harm, but also extends to psychological harm: see, for example, R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72, at p. 81; and Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625, at para. 62.
[72] Further, on a plain reading of s. 279.04 as it was at the time of the offence, nothing in the language of s. 279.04 excluded deception or other forms of psychological pressure from the range of behaviour that satisfies the conduct requirement in s. 279.011(1), as well as the applicable portion of the definition of exploitation in s. 279.04. While the legislation was later amended to make this point more clear, this did not change the law.
[73] This interpretation is consistent with the language of s. 279.04, as well as the intention of Parliament in enacting the trafficking provisions. A review of the Minister’s remarks in introducing the original Bill and the ensuing debates about this Bill and subsequent amending Bills show that the trafficking provisions in the Criminal Code gave domestic effect to principles expressed in an international convention and protocol to which Canada was a signatory. The approach was intended to be broad-based, applicable equally to individual offenders and sophisticated criminal organizations, and to capture both physical and psychological forms of exploitation.[^1]
[74] Here, in determining whether there was exploitation on the facts, the trial judge began by correctly stating the objective standard expressed in s. 279.04. However, in applying this standard to the factual findings made, the trial judge lost sight of the objective requirement of determining whether there was exploitation. The trial judge’s finding that exploitation did not arise was erroneously based on the complainant’s subjective belief as to whether her safety was threatened. This ran contrary to the statutory language under s. 279.04.
[75] This is evidenced in paras. 185 to 193 of her reasons, excerpted above, where the trial judge considers exclusively what was in the mind of G.M.S. in concluding that she was not exploited:
• “She explained it when asked if she could leave anytime, whenever she wanted. She said, “yes he did say I could leave, but it – it was more psychological that he kept me”;
• “She never testified she danced because she believed her safety would be threatened, she danced because she was deceived”;
• Her concern for her safety appears to be related to reprisals for talking to the police, not to what would have happened if she stopped dancing;
• “She never testified she danced because she believed her safety would be threatened, she danced because she was deceived”; and
• “She never related any violence to dancing or not dancing. She said he hit me every day because I would stand up to him”.
[76] While the subjective belief of a complainant is not to be entirely cast aside, it is also not to be considered to the exclusion of an objective assessment based on all the circumstances, as mandated by the statutory language in s. 279.04. The trial judge failed to consider any objective factors in arriving at her conclusion. For example, she failed to consider how the incidents of assault could lead to a finding of exploitation. While the complainant did not link the assault to her choice to dance, this does not mean an objective view of the evidence would not have permitted such a conclusion. Further, as noted earlier, s. 279.04 does not require that the complainant’s safety actually be threatened and safety includes a consideration of psychological safety.
[77] The trial judge applied the wrong legal standard in deciding whether exploitation was present on the facts. It follows, in my respectful view, that the acquittals on the trafficking and material benefit counts must be set aside. I will leave the disposition to be made as a result of these errors to the conclusion of my reasons on the Crown appeal.
The Relationship between ss. 279.04 and 279.011(1)
[78] While the parties did not make any submissions on this issue, the following observations on the relationship between ss. 279.04 and the purpose requirement under s. 279.011(1) (and, by necessary implication, s. 279.01) are intended to provide some guidance to the new trial judge.
[79] On a straightforward reading of s. 279.011(1), three elements need to be established by the Crown in order for the offence of trafficking of a person under 18 to be made out:
i. the conduct;
ii. prohibited group; and
iii. purpose.
[80] The conduct requirement may be established in several different ways including exercising control, direction or influence over the movements of another person.
[81] The prohibited group requirement is met where the person who is the subject of an accused’s conduct is under 18.
[82] The fault element of the offence consists of two components. First, the intent to do anything that satisfies the conduct requirement in s. 279.011(1). Second, the purpose for which the conduct in relation to a member of the prohibited age group is done. Specifically, s. 279.011(1) requires that the accused act with the purpose of exploiting or facilitating the exploitation of that person. The purpose element in s. 279.011(1) extends beyond the intentional conduct that is the actus reus of the offence to what could be described as the object an accused seeks to attain, or the reason for which the conduct is done or the result intended.
[83] A plain reading of s. 279.011(1) without any interpretive assistance would support the conclusion that the terms “exploiting” and “exploitation” would bear their normal, natural every day meaning of taking advantage of or using another person for one’s own ends. However, what is meant by “exploiting” and “exploitation” in s. 279.011(1) is informed by s. 279.04, a provision that acts like a definition.
[84] While s. 279.04 defines exploitation in the context of the offence of human trafficking, the fault element in s. 279.011(1) focusses on an accused’s purpose in exercising control, direction or influence over the movements of a person in the proscribed age group. It is of no moment to proof of this ulterior fault element that an accused fails to achieve his purpose.
[85] In other words, no exploitation need actually occur or be facilitated by the accused’s conduct for an accused to be convicted of human trafficking. A similar point was made by the Quebec Court of Appeal in R. v. Urizar, 2013 QCCA 46, 99 C.R. (6th) 370, at para. 69:
L’élément central des textes législatifs en cause est la criminalisation de la notion d’exploitation. Les actes mentionnés au premier alinéa de l’article 279.01 C.cr. ne constituent des actes criminels que dans la mesure où ils sont posés en vue d’exploiter ou de faciliter l’exploitation de la personne, peu importe qu'une exploitation réelle s'ensuive. [Emphasis added.]
[86] Thus, where human trafficking is a charged offence, the Crown needs to prove – along with conduct and the prohibited group – that the accused acted with the purpose of exploiting the complainant or facilitating his or her exploitation. The Crown does not need to show that exploitation actually occurred. Both exploitation and facilitation of exploitation in s. 279.011(1) relate to an accused’s state of mind, his or her purpose in engaging in prohibited conduct. Said in another way, exploitation and safety relate to an accused’s purpose and not to the actual consequences of the accused’s behaviour for the victim.
[87] To reiterate, in considering whether the offence under s. 279.011(1) is established, the analysis does not end at whether there was actual exploitation. 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. 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 he or she committed one of the listed acts. However, it does not become an essential element of the offence.
[88] Such an interpretation is consistent with a reading of ss. 279.011(1) and 279.04 in their entire context and in their grammatical and ordinary sense. The language of s. 279.011(1) is clear in that it only requires that the accused perform a certain act with the purpose of exploiting a person or facilitating their exploitation. This interpretation is also consistent with the object of the legislative provisions, which was to criminalize a wide range of intentional conduct that has, as its purpose, the exploitation of vulnerable persons. This is achieved by enjoining preliminary or preparatory conduct, such as recruitment, and by prohibiting the destruction or withholding of documents that facilitate control over others and the profiting from exploitative behaviour.
Ground #2: The Living on the Avails Error
[89] The second ground of appeal advanced by Crown counsel relates only to the count that charged A.A. with living on the avails of a single act of prostitution by G.M.S. No further references to the evidence are necessary since its essential features appear in two paragraphs of the trial judge’s reasons.
The Reasons of the Trial Judge
[90] The trial judge’s decision on the count charging living on the avails of prostitution appears in the following passages in her reasons:
[199] Count 8 is living wholly or in part on the avails of prostitution.
[200] An essential element of the offence is of course that G.M.S. was engaged in prostitution. While there is evidence that on one occasion, she engaged in an act of prostitution that does [not] make her a prostitute. Therefore the presumption that a person who lives with or is habitually in the company of a prostitute is in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution is not applicable in this case. While I accept that she gave A.A. the money from the ‘extra’ that is not sufficient to support a conviction for this offence. A.A. is therefore acquitted of count 8.
The Arguments on Appeal
[91] For the appellant, Ms. Stephens points out that the trial judge found that G.M.S. engaged in a single act of prostitution – sexual intercourse with a patron at the Silver Dollar – for which she received $100. She turned the money over to A.A. The trial judge then concluded that a single act of prostitution did not trigger the presumption in s. 212(3). It followed, according to the trial judge that the single act of prostitution, coupled with delivery of payment to A.A., did not prove the offence.
[92] Ms. Stephens says that a single act of offering one’s body for sexual intercourse or gratification in return for payment of money can amount to prostitution. The trial judge erred in deciding otherwise. In light of the trial judge’s finding of fact, the governing legal principles warrant entry of a conviction on this count.
[93] For A.A., Mr. Harbic acknowledges that a single act of sexual intercourse in return for payment can amount to an act of prostitution if the trier of fact determines the conduct to be of that character. But here the trial judge exercised her “discretion” and had a reasonable doubt about A.A.’s guilt. The result does not involve a legal error and should not be disturbed.
The Governing Principles
[94] Under s. 212(2) of the Criminal Code, as it was at the time the alleged offence occurred, a person who lives wholly or in part on the avails of the prostitution of a person under 18 commits an indictable offence. Under s. 212(3) evidence that a person lives with or is habitually in the company of a prostitute is proof that the person lives on the avails of prostitution, absent evidence to the contrary.
[95] Prostitution consists of offering one’s body for the purpose of sexual intercourse or other sexual gratification in return for payment: R. v. Di Paola (1978), 1978 2424 (ON CA), 43 C.C.C. (2d) 199 (Ont. C.A.), at p. 208. To constitute prostitution a course of conduct is not required. A single act of the required character will suffice: Di Paola, at p. 208.
[96] The rebuttable presumption created by s. 212(3) assists the Crown in its proof where there is evidence of shared residence or habitual accompaniment by the accused with a “prostitute”. However, the presumption is not a condition precedent to conviction. It is merely an evidentiary provision that assists the Crown in its proof.
The Principles Applied
[97] I would give effect to this ground of appeal for two reasons.
[98] First, the trial judge erred in holding that a single act of the requisite character could not amount to prostitution for the purposes of the offence in s. 212(2). G.M.S. was sixteen years old. She had sexual intercourse with a patron of the Silver Dollar. She received $100 in payment for that act of sexual intercourse. She turned the money over to A.A., in accordance with their arrangement. Proof of each of these elements established an offence under s. 212(2).
[99] Second, the trial judge was correct about the inapplicability of the presumption in s. 212(3) of the Criminal Code. The basic facts necessary to engage the presumption, that is that A.A. lived with or was habitually in the company of G.M.S. who was a “prostitute”, which is rebuttable by the introduction of evidence to the contrary, were lacking. Whether the presumption applied was beside the point. Where applicable, the presumption assists the Crown as proof. But the presumption is not an essential element of the offence, i.e. something that must be established to prove guilt. The presumption assists the Crown in its proof, but its operation is beside the point where proof is made otherwise.
Conclusion: A New Trial is Required
[100] Section 686(4)(b) describes the orders an appellate court may make when it allows an appeal by the Crown and sets aside a judgment or verdicts of acquittal of a trial court in proceedings on indictment. The appellate court may order a new trial or, in some circumstances, enter verdicts of guilty.
[101] To set aside acquittals and enter convictions, we must be satisfied that the trial judge’s findings of fact, viewed in light of the applicable law, support a conviction for each offence beyond a reasonable doubt: R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326, at para. 51; R. v. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931, at para. 39; and R. v. Cassidy, 1989 25 (SCC), [1989] 2 S.C.R. 345, at pp. 354-355. The authority to enter convictions is an authority that should be exercised only in the clearest of cases: McRae, at para. 39; and R. v. Audet, 1996 198 (SCC), [1996] 2 S.C.R. 171, at para. 48. The relevant findings of fact upon which a conviction may be entered on appeal are those of the trial judge, not those of this court: Katigbak, at paras. 50-52.
[102] In this case, the trial judge found the conduct requirement in s. 279.011(1) proven beyond a reasonable doubt. She found that exploitation had not been proven, but her findings on that issue are inextricably linked to her legal error about the nature of exploitation required. In light of this legal error, I am unable to say the necessary findings of fact have been made to enter convictions in place of the acquittals on the trafficking and material benefit counts. At all events, this is not the clearest of cases in which to do so.
[103] The case for entering a conviction on the living on the avails count is more formidable, although the trial judge’s findings of fact seem to stop at A.A.’s receipt of the payment for a single act of prostitution. That said, it seems more in harmony with the interests of justice to have all these counts on which acquittals were entered considered together afresh by a single trier of fact.
THE APPEAL FROM CONVICTION
[104] A.A. appeals his convictions of assault with a weapon, counselling another to commit assault with a weapon, assault and breach of an undertaking. He advances three grounds of appeal. None require any further factual background. A brief canvass of how the trial judge approached her task is enough to provide context for the discussion that follows.
The Reasons of the Trial Judge
[105] In general terms, the trial judge found G.M.S. was a credible witness and her testimony reliable, apart from her exaggeration of the number of assaults inflicted upon her by A.A. She accepted her evidence:
[165] There are other issues surrounding her credibility which I will address when dealing with each offence, however despite some concerns I found her overall to be credible and I accept her evidence concerning her relationship with A.A., her dancing, and his actions and remarks toward her in relation to her dancing. Her evidence accords with the circumstances and other evidence in this case. It is plausible, reasonable and conforms with the other evidence. It is corroborated by the texts and facebook messages and is in large part consistent with A.A.[‘s] own evidence. While A.A.’s explanation for his reaction following G.M.S. being upset about Mariana is not plausible given his other evidence, his reaction is entirely consistent and plausible given G.M.S.’s evidence about their relationship. His concern was not for her well being but rather the prospect of losing her income.
[106] After making this threshold finding about the credibility of G.M.S. and the reliability of her evidence, the trial judge considered and rejected several specific complaints advanced by trial counsel concerning the adequacy and objectivity of the police investigation. She then proceeded with a count by count analysis of the allegations.
The Grounds of Appeal
[107] A.A. advances three grounds of appeal. The first two grounds allege errors in the trial judge’s assessment of the credibility of G.M.S. and the reliability of her evidence. I would paraphrase those complaints as submissions that the trial judge erred in:
i. failing to undertake a proper analysis and to appreciate the inconsistencies in the testimony of G.M.S.; and
ii. relying too much on the demeanour of G.M.S as a witness in finding her credible and her testimony reliable.
The third ground of appeal is that the convictions are unreasonable.
Ground #1: Inadequate Appreciation and Analysis of Inconsistencies in the Complainant’s Evidence
[108] The first ground of appeal focusses on the trial judge’s treatment of inconsistencies in the testimony of G.M.S. The complaint is not, as I understand it, that the trial judge failed to take these inconsistencies into account. Rather, the claim is that she failed to analyze them fully and to appreciate their overall impact on G.M.S.’s credibility and the reliability of her testimony.
The Reasons of the Trial Judge
[109] The trial judge began her lengthy reasons, which she delivered about one month after final argument, with a witness-by-witness recapitulation of the evidence adduced at trial. She then turned to an analysis of the credibility of the principal witnesses, including G.M.S. and A.A.. The trial judge, relying on authority from this court, approached her task with two principles in mind:
i. that the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between the witnesses sworn testimony at trial and what she said on other occasions, whether under oath or unsworn, and
ii. that the credibility of interested witnesses cannot be gauged solely by the test that the personal demeanour of the witness carried conviction of the truth.
[110] The trial judge then turned to the testimony of A.A. and noted several problems with it. Internal and external inconsistencies. Implausibilities. The judge illustrated each by specific evidentiary references. The trial judge did not believe A.A. His evidence did not raise a reasonable doubt about his guilt.
[111] After rejecting the testimony of A.A., the trial judge devoted several paragraphs of her reasons to a consideration of the specific complaints about the evidence of G.M.S. advanced by trial counsel:
i. exaggerations;
ii. internal inconsistencies;
iii. motive to lie; and
iv. the absence of confirmatory physical evidence.
[112] It was only after her consideration and analysis of the specific issues raised by counsel for A.A. that the trial judge accepted G.M.S.’s evidence.
The Arguments on Appeal
[113] For A.A., Mr. Harbic contends that the trial judge ignored or minimized several inconsistencies in the testimony of G.M.S. or between her testimony and the evidence of other witnesses. These included G.M.S.’s evidence about her relationship with her former boyfriend Ahmed, her withdrawal of money from her father’s credit card account, her exaggeration of the amounts of money she earned dancing, the number of persons present in a motor vehicle when she claimed to have been tasered and the absence of any noise complaints at the motel. Mr. Harbic submits that the failure of the trial judge to deal with or appreciate the significance of these inconsistencies flawed her credibility/reliability analysis and compromised the convictions she recorded.
[114] For the Crown, Ms. Stephens characterizes the complaint as a challenge to the adequacy of the trial judge’s reasons. In the end, Ms. Stephens says, the issue is whether the reasons are so deficient that they foreclose meaningful appellate review. These reasons cannot be so characterized.
[115] Ms. Stephens points out that this case turned on the credibility and reliability of G.M.S and A.A. The trial judge’s findings on these issues are entitled to deference and the sufficiency of her reasons must be assessed in that light. To determine whether the reasons were sufficient or fell short, we should consider what the judge said in the context of the record, the issues in play and the submissions of trial counsel. The trial judge seized the substance of the case and explained the basis for her decision in unexceptionable terms.
The Governing Principles
[116] Several basic principles govern our review of the sufficiency of the reasons delivered at the conclusion of proceedings in which the credibility and reliability of the testimony of the principal witnesses is the focal point.
[117] First, our approach is functional. An appeal based on a claim of insufficient reasons will fail unless the reasons are so deficient that they foreclose meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25; and R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10.
[118] Second, credibility determinations attract a high degree of deference on appellate review: Dinardo, at para. 26; Vuradin, at para. 11; R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 66; and R. v. M.(O.), 2014 ONCA 503, 313 C.C.C. (3d) 5, at para. 19.
[119] Third, to determine the sufficiency of reasons, we are to read those reasons as a whole in the context of the evidence adduced and the arguments and positions advanced at trial: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16; and Vuradin, at para. 12.
[120] Fourth, in composing reasons for judgment, a trial judge is not required to discuss all the evidence or to answer every argument advanced by counsel: R.E.M., at paras. 32 and 64; Dinardo, at para. 30; Vuradin, at para. 17; and M.(O.), at para. 28.
[121] Fifth, we accord significant deference to a trial judge’s appreciation of the evidence adduced at trial, as well as his or her findings on the credibility of witnesses and the reliability of their testimony. Absent palpable and overriding error, determinations of credibility and reliability made by the trial judge are to be respected on appeal: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; and M.(O.), at para. 19.
The Principles Applied
[122] For several reasons, I would not accede to this ground of appeal.
[123] First, adopting a functional approach to the complaint of inadequacy, the argument advanced alleges deficiencies in the trial judge’s analysis of issues of credibility and reliability. The trial judge’s determination on both these issues is entitled to substantial deference in this court.
[124] Second, counsel for A.A. acknowledges that the trial judge did consider internal and external inconsistencies in the testimony of G.M.S. and their impact on her credibility and the reliability of her testimony. Disagreement with the weight assigned does not ascend to the level of palpable and overriding error. Nor does the failure to consider inconsistencies on the periphery compel intervention in the absence of any obligation to consider and respond to each claim no matter how distant from the core issues in the case.
[125] Third, the trial judge considered several specific complaints advanced by trial counsel and explained why she rejected them. The further catalogue of issues raised on appeal were not argued at trial, perhaps affording the best evidence of their inconsequential impact.
[126] Finally, the arguments advanced approach an invitation to retry the case by recalibrating the weight to be assigned to the evidence the trial judge saw and heard in a court that sits at one remove from those advantages. We lack that authority.
Ground #2: Overemphasis on Demeanour
[127] The second ground of appeal also focusses on what is said to be a flaw in the fact-finding by the trial judge which led to erroneous findings of guilt.
The Reasons of the Trial Judge
[128] The trial judge began her reasons on the issues of credibility and reliability with a self-reminder of the governing principles including the impact of demeanour on the decision. The self-instructions appear in paragraph 128 of the trial judge’s reasons and are summarized in paragraph 109 of these reasons.
The Arguments on Appeal
[129] For A.A., Mr. Harbic argues that the trial judge decided credibility entirely on the basis of G.M.S.’s demeanour in the witness box. Demeanour, he argues, is not sufficient to ground a conviction where there are significant inconsistencies in testimony and conflicting evidence.
[130] Ms. Stephens, for the Crown, submits that a witness’s demeanour can be relevant to credibility. In this case, the trial judge’s findings on credibility were rooted in multiple factors: consistencies in the evidence, common human experience and, to a lesser extent, demeanour.
The Governing Principles
[131] It is beyond dispute that demeanour is a factor the trier of fact is entitled to consider in assessing the credibility of witnesses and the reliability of their testimony: R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and 26; and R. v. François, 1994 52 (SCC), [1994] 2 S.C.R. 827, at pp. 835-836.
[132] On the other hand, it is equally well settled that a witness’s demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: R. v. Norman (1993), 1993 3387 (ON CA), 16 O.R. (3d) 295 (C.A.), at pp. 311-315.
The Principles Applied
[133] I would reject this ground of appeal.
[134] The trial judge accurately captured the role of demeanour in the assessment of the credibility of witnesses and the reliability of their evidence. A review of her reasons, taken as a whole in the context of the evidence adduced and the arguments and positions advanced at trial, belies any suggestion of overemphasis on demeanour in her analysis. The findings are firmly rooted in a consideration of a number of factors, including consistencies/inconsistencies in testimony, common human experience, inherent plausibilities and demeanour. No special place was assigned to demeanour.
Ground #3: Unreasonable Verdicts
[135] The final ground of appeal against conviction is that the convictions recorded at trial are unreasonable.
The Arguments on Appeal
[136] For A.A., Mr. Harbic says that for findings of guilt to be reasonable, the evidence must reasonably and objectively support the findings. Here, Mr. Harbic contends, several factors coalesced to taint the findings: the nature and extent of the frailties in the evidence of G.M.S; the failure of the trial judge to understand and properly apply the evidence; and the inherent improbability that events unfolded as G.M.S. claimed. The results, according to Mr. Harbic, were conclusions of guilt that no reasonable trier of fact could have reached acting judicially.
[137] For the Crown, Ms. Stephens acknowledges the standard to be applied is whether the verdicts were ones that a properly instructed jury, acting judicially, could reasonably have rendered. Where the challenge is based on what is said to be an improper assessment of a witness’s credibility, Ms. Stephens says, we owe and should accord great deference to the findings made at trial. Here, the verdicts were reasonable. The trial judge, as she was entitled to do, found G.M.S. credible and her evidence reliable. That evidence was subject to close scrutiny by the trial judge and fully supported her conclusions.
The Governing Principles
[138] Four brief points should be made about the principles at work when findings of guilt are challenged as unreasonable.
[139] First, the test or standard applicable is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; and R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 55.
[140] Second, the test for unreasonableness imports not only an objective assessment, but also a subjective one. We must determine what verdict a reasonable jury, properly instructed, could judicially reach, and in doing so, review, analyze and, within the limits of appellate disadvantage, weigh the evidence: Biniaris, at para. 36.
[141] Third, when a claim of unreasonableness is advanced in a case tried without a jury, the test of unreasonableness remains the same. Appellate intervention is necessary where the reasons of the trial judge disclose that:
i. the judge was not alive to an applicable legal principle; or
ii. the judge entered a verdict inconsistent with the factual conclusions the judge had reached.
See Biniaris, at para. 37.
[142] A verdict is not necessarily unreasonable because a trial judge has erred in his or her analysis: Beaudry, at para. 58. The review must go further. The court must determine whether the verdict is unreasonable. To do so, the court must consider all the evidence: Beaudry, at para. 58; and R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 6.
[143] Finally, in its application of the unreasonable verdict test to a decision rendered by a judge sitting without a jury, an appellate court must accord great deference to the trial judge’s assessment of the witnesses’ credibility: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 30; and R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at p. 131. A verdict anchored in an assessment of credibility is only unreasonable if the trial court’s assessment of credibility cannot be supported on any reasonable view of the evidence: W.H., at para. 34.
The Principles Applied
[144] This ground of appeal fails for three reasons.
[145] First, great deference is due to the credibility/reliability findings of the trial judge and her conclusions as to the adequacy of the case for the Crown to satisfy the standard of proof. The trial judge’s assessments fall well within a reasonable view of the evidence. The mixed conclusions reflect a reasoned analysis of the totality of the evidence.
[146] Second, A.A. has failed to demonstrate any error in the legal principles identified and applied by the trial judge in her analysis of the evidence on these counts and, in particular, the credibility/reliability issue.
[147] Third, the conclusions reached by the trial judge in finding guilt are consistent with her factual conclusions about the credibility of the witnesses and the reliability of their evidence. A.A.’s attempt to persuade us otherwise fails.
CONCLUSION
[148] In the result, I would allow the Crown’s appeal from the acquittals on the human trafficking, material benefit and living on the avails charges, set aside those acquittals and order a new trial on those counts. I would dismiss A.A.’s appeal from his convictions.
Released: July 29, 2015 (DW)
“David Watt J.A.”
“I agree K. van Rensburg J.A.”
“I agree G. Pardu J.A.”
[^1]: For example, see House of Commons Debates, 38th Parl., 1st Sess., No. 125 (26 September 2005) at pp. 1255-1310 (Richard Marceau) and pp. 1640-1705 (Christiane Gagnon); House of Commons Debates, 38th Parl., 1st Sess., No. 135 (17 October 2005) at pp. 1540-1555 (Hon. Irwin Cotler); House of Commons Debates, 41st Parl., 1st Sess., No. 36 (25 October 2011) at pp. 1715-1730 (Joy Smith) and pp. 1750-1800 (Robert Goguen); House of Common Debates, 41st Parl., 1st Sess., No. 112 (27 April 2012), at pp. 1405-1420 (Laurin Liu).