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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
CITATION: R. v. Sinclair, 2020 ONCA 61
DATE: 20200130
DOCKET: C64886
Pardu, Brown and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Marcus Sinclair
Appellant
Andrea Vanderheyden, for the appellant
Jeremy Tatum, for the respondent
Heard: January 6, 2020
On appeal from the convictions entered on May 17, 2017 and the sentence imposed on October 12, 2017 by Justice Nancy Mossip of the Superior Court of Justice.
Pardu J.A.:
[1] The appellant appeals from convictions for trafficking in persons over the age of 18 years and theft. He submits that the trial judge erred in her charge to the jury in three respects and further by amending the indictment charging theft. Specifically, the appellant argues that the trial judge:
(1) provided misleading instructions on the meaning of exploitation as defined in s. 279.04(1) of the Criminal Code, R.S.C., 1985, c. C-46;
(2) did not adequately relate the Facebook messages from the complainant to the appellant to the principles governing prior inconsistent statements and explain more fully the significance those messages had for the complainant’s credibility;
(3) did not adequately explain psychological safety as it relates to the definition of exploitation; and
(4) inappropriately amended the indictment from an allegation that the appellant stole four cell phones and a tablet to theft of three cell phones and a tablet, to conform to the complainant’s evidence.
[2] I do not accept these arguments and would dismiss the appeal from conviction.
[3] The appellant also appeals from his sentence, alleging the trial judge erred in failing to consider his pretrial custody. The Crown concedes that the appellant should have been given this credit. I would allow the appeal from sentence and vary the sentence accordingly.
A. BACKGROUND
[4] The complainant was homeless and living in a shelter when she met the appellant. She was about 18 or 19 years old. She was working as a sex trade worker. Her two children were in custody of the Children’s Aid Society. The appellant offered her a place to live in his apartment. They were together for approximately seven years.
[5] The complainant said the appellant led her to believe she could have a better life and he would adopt her children if she worked hard. She testified that he mentally abused and controlled her, saying that he:
• kept most of the money she earned
• took calls from clients, posted ads for her, told her what to charge clients, and devised a pseudonym for her
• sometimes hid in the hotel room when she was with a customer, and
• called her lazy for not wanting to work and not taking calls from clients.
[6] She said she tolerated the way he treated her because she had nowhere to go, no money, no friends or family to turn to, and he was all she had. She also said that, despite not being in a romantic relationship with the appellant, she felt attached to and invested in him due to the time and money she had given him.
[7] She had hundreds of clients over the years when she was with the appellant. During cross-examination, the complainant said that no one told her there would be consequences if she refused a client. Sometimes she left the appellant and went to other cities, although she still provided him with her earnings from Edmonton, for example.
[8] The appellant did not testify. At trial, his defence was that he was the complainant’s friend who helped her with various aspects of her sex trade work, at the complainant’s request. The appellant also took the position that the complainant chose to work in the sex trade of her own free will and denied any coercion or violence on his part.
B. STATUTORY PROVISIONS
[9] The appellant was charged under section 279.01(1) of Criminal Code, which reads as follows:
Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence…
Exploitation is defined under section 279.04(1) of the Criminal Code:
For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them 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, or offer to provide, the labour or service.
[10] The first element of the offence is an action by the accused, who must be a person who “recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person”. This court explained the meaning of “influence” in this context in R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, at para. 47:
Consistent with Perreault, I would define “exercises influence” over the movements of a person for the purposes of s. 279.01(1) as something less coercive than “exercises direction”. Exercising influence over a person’s movements means doing anything to affect the person’s movements. Influence can be exerted while still allowing scope for the person’s free will to operate. This would include anything done to induce, alter, sway, or affect the will of the complainant. Thus, if exercising control is like giving an order that the person has little choice but to obey, and exercising direction is like imposing a rule that the person should follow, then exercising influence is like proposing an idea and persuading the person to adopt it. [Footnote omitted.]
[11] There was no substantial dispute as to this element of the offence at trial. There can be no doubt the appellant exercised influence over the complainant by persuading her to live with him, by telling her how much to charge customers, and by posting ads for her to work as a sex trade worker, among other things.
[12] The second element is that the accused’s actions must be for the purpose of exploiting or facilitating the exploitation of the complainant. Actual exploitation is not required. The focus is on the accused’s state of mind. Where exploitation arises on the facts, “inferring that the accused’s purpose was to exploit the victim will usually be a relatively straightforward task”: Gallone, at para. 54; R. v. A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 87.
[13] The third element is met if the accused causes the complainant to provide or offer to provide a service. Again, there was no dispute that the complainant provided and offered to provide services as a sex trade worker.
[14] The fourth element is that the accused so causes the complainant to provide or offer 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, or offer to provide, the labour or service”. Actual exploitation is not necessary. The fourth element is assessed on an objective basis. Safety includes protection from psychological harm:A.A., at paras. 71-73; Gallone, at paras. 53-54.
[15] Circumstances that might be relevant when assessing whether conduct could reasonably be expected to cause a complainant to fear for their safety might include:
• the presence or absence of violence or threats
• coercion, including physical, emotional or psychological
• deception
• abuse of trust, power, or authority
• vulnerability due to age or personal circumstances, such as social or economic disadvantage and victimization from other sources
• isolation of the complainant
• the nature of the relationship between the accused and the complainant
• directive behaviour
• influence exercised over the nature and location services provided
• control over advertising of services
• limitations on the complainant’s movement
• control of finances
• financial benefit to the accused, and
• use of social media to assert control or monitor communications with others.
For an example in which some of these factors are applied, see R. v. Crosdale, 2018 ONCJ 800, at paras. 139, 144, and 148-169.
C. ANALYSIS
[16] I turn to a consideration of the specific errors alleged by the appellant.
(1) The trial judge provided proper instructions on the meaning of exploitation as defined in s. 279.04(1) of the Criminal Code
[17] The appellant points to the following section of the charge:
Let us look at the definition of “exploitation”. We can take out the words “or the safety of a person known to them,” because there is no evidence that [the complainant] felt the safety of another person would be threatened. The labour or service [the complainant] said she provided was that of prostitution. It is not necessary for this offence that you find that prostitution occurred, though [the complainant] testified that it did. As well, if you accept [the complainant’s] testimony as to Mr. Sinclair advertising her sexual services on certain websites known for this purpose, or answered calls on her behalf, then that conduct would come with the definition of “offer to provide a service”.
[18] The appellant says this instruction was unclear and conflated the activity of offering to provide services for a complainant with forcing a complainant to offer to provide services. He argues that the trial judge essentially told the jury that because the appellant advertised the complainant’s services and answered calls for the complainant, his behaviour fell within the definition of “offering to provide a service.”
[19] I do not agree. In this portion of the charge, the trial judge was addressing the third element as described above, about which there was little controversy. This portion of the charge had nothing to do with the appellant’s purpose or whether the conduct was exploitive.
(2) The trial judge provided proper instructions regarding the complainant’s Facebook messages and prior inconsistent statements
[20] After the complainant spoke to police and the appellant was charged, the complainant sent a number of Facebook messages to the appellant, including the following:
• “You never were the bad guy.”
• “I want this to work I will fix it”
• “They want to tap my phone delete the messages”
• “You the realize nigga Ive ever met I miss you
It ain't right without you”
• “I have enough to help you
Let me help you we was good
Here everything I said to them was a lie I want this to work.”
• “I only still wanna be your partner if you want me too”
• “Can u put something up for me”
[21] The trial judge gave the jury full and legally correct instructions on the use of prior inconsistent statements. She reminded the jury that the complainant had agreed that she had numerous communications with the appellant on Facebook, that they would have the written communications with them in the jury room, and that she was not going to go through them in her charge.
[22] This was sufficient in the context of a three-day jury trial, given that the jury had the written communications with them during their deliberations. The jury acquitted the appellant of two counts of assault and one count of withholding documents, so it is clear the jury did not uncritically accept the complainant’s testimony.
(3) The trial judge adequately explained “psychological safety” as it relates to the definition of exploitation
[23] The trial judge instructed the jury on this issue as follows:
The reference to safety in the above definition requires further elaboration. This definition does not require that [the complainant’s] safety actually be threatened, and safety includes a consideration of psychological safety.
Based on all of the evidence, if you find either that it was reasonable that [the complainant] felt her safety was threatened, or simply that it could reasonably be expected that a person in [the complainant’s] situation would believe that her safety, either physical or psychological, was threatened, for example by any conduct that you find Mr. Sinclair said or did to her, that part of the definition would also be met. The test to be proved by the Crown is not whether [the complainant] was actually threatened. The test is whether you find the conduct of Mr. Sinclair in all the circumstances, could reasonably be expected to cause [the complainant] to believe that her safety was threatened.
So the evidence related to this question is: [the complainant] testified that she felt she had to go to work as a prostitute, because she was afraid of Mr. Sinclair, in other words that her safety was threatened. She said he did punch her on one occasion and tipped her out of a chair on another occasion when he was angry. You will recall that she also said they had numerous arguments in which he insulted her. She said he threw the fact that her children were taken by the CAS in her face. Remember what I said about “safety” including “psychological safety” as well as “physical safety”.
[The complainant] also testified that Mr. Sinclair kept most of the money she made as a prostitute. [The complainant] said she had no place to live; she had no friends or family. [The complainant] told you that she stayed because she was emotionally abused by Mr. Sinclair, and he was all she had.
[24] I do not agree that the trial judge needed to import the notions of actual “serious bodily harm” or “subjective fear for safety” drawn from other statutory contexts. The use of the word “safety” in itself suggests more than a trivial interference with either physical or psychological well-being. The assessment here was an objective one: could the appellant’s conduct be reasonably expected “to cause [the complainant] to believe that her safety was threatened.”
[25] In the circumstances of this case, no prejudice was occasioned by the trial judge’s failure to further define “safety” or “psychological”. On a functional review of the charge, the submissions of counsel, and the evidence adduced at trial, I am satisfied that the jury was “left with a sufficient understanding of the facts as they relate to the relevant issues”: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 14. Put another way, “the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues”: R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at p. 163; R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 13.
(4) The trial judge did not err in allowing the amendment to the indictment
[26] Section 601(3)(b) of the Criminal Code provides that a court shall, at any stage of the proceedings, amend the indictment where it appears that the indictment fails to state or states defectively anything that is requisite to constitute the offence, or is in any way defective in substance, and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the trial. In deciding whether to grant the amendment, as per s. 601(4) of the Criminal Code, the court must consider the following:
(a) the matters disclosed by the evidence taken on the preliminary inquiry (if relevant);
(b) the evidence taken on the trial, if any;
(c) the circumstances of the case;
(d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission; and
(e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.
[27] Here, the amendment changed the number of cellphones alleged to have been stolen from four to three. There was no dispute the property was valued at less than $5000. The appellant’s defence was that he did not steal any of the complainant’s property, and that the Crown did not prove the property belonged to the complainant.
[28] I agree with the Crown that the appellant was not prejudiced by the amendment. The nature of the property alleged to have been stolen did not change and the offence remained the same. The jury had the complainant’s inconsistent statements about the number of cell phones. The jury could use those statements to assess her credibility regarding the theft allegation.
[29] The trial judge did not err in permitting the amendment.
(5) Sentence appeal
[30] The appellant was sentenced to 30 months incarceration. Before release on bail, he spent 14 days in pretrial custody. The Crown concedes that the sentence should be varied to give 21 days credit for the pretrial custody.
(6) Language used to describe the complainant
[31] The complainant was a troubled, homeless, and vulnerable person when she met the appellant. The jury concluded that he exploited her, thereby victimizing her. I have chosen to refer to her in this decision as a “sex trade worker” rather than a “prostitute” because, in my view, the descriptor “prostitute” carries with it negative connotations that risk dehumanizing or demeaning a victim or complainant. Sex trade worker is a more neutral descriptor that lessens this risk.
[32] As pointed out in R. v. Barton, 2019 SCC 33, 376 C.C.C. (3d) 1, at para. 230, per Abella and Karakatsanis JJ. (dissenting in part, but not on this point):
Based on studies that found that “jurors were more likely to convict a defendant accused of raping a woman with a chaste reputation than an identical defendant charged with assaulting a prostitute”, this Court in Seaboyer expressly warned against the use of the word “prostitute” because the use of this term is intrinsically linked to “twin myths” reasoning and can lead to substantial prejudice in the way the jury assesses the evidence. [Citations omitted.]
[33] The word “prostitute” is no longer used in current provisions of the Criminal Code.
D. DISPOSITION
[34] For the reasons above, I would dismiss the conviction appeal and would allow the sentence appeal by reducing the sentence to 29 months and 7 days to reflect the appellant’s pretrial custody credit.
Released: January 30, 2020
“GP”
“G. Pardu J.A.”
“I agree David Brown J.A.”
“I agree Grant Huscroft J.A.”