WARNING

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

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

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

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

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

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

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

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

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

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

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

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

Court of Appeal for Ontario

Date: 2021-12-02 Docket: C65062

Judges: Hoy, Benotto and Sossin JJ.A.

Between: Her Majesty the Queen, Respondent and Jaiden Alexis-McLymont, Appellant

Counsel: Breana Vandebeek and Colleen McKeown, for the appellant Jeremy D. Tatum, for the respondent

Heard: November 17, 2021

On appeal from the conviction entered on September 28, 2017, and the sentence imposed on February 20, 2018 by Justice Ian F. Leach of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was convicted of human trafficking, procuring, and receiving a material benefit from someone under 18. He received a global sentence of six years. He appeals the convictions, alleging that the judge’s charge to the jury was unfair and was in error with respect to the instructions on each count.

Brief background

[2] The Crown alleged that the appellant recruited the complainant, a 15-year-old homeless girl who was addicted to crystal meth, to engage in sex work for his profit. The Crown relied on a series of messages between the appellant and the complainant’s boyfriend which discussed making money from the complainant’s sex work. In these messages, the appellant came up with a fee structure and discussed his “cut”.

[3] The appellant brought the complainant to a hotel room where two other men (the co-accused at trial) were present. The appellant told her that performing sex acts was the only way she could get more drugs for her addiction. One of the men was known by the appellant to be a pimp. When the appellant left the hotel room, the other two men refused to let her leave, sexually assaulted her, and trafficked her for sex.

[4] The complainant testified at trial. The appellant did not testify and called no evidence.

The jury charge

[5] The appellant submits that the jury charge was both unfair and wrong in law.

[6] The unfairness arose, according to the appellant, because the trial judge editorialized the evidence, did not adequately explain the appellant’s defence, made references to there being “no evidence” to contradict portions of the Crown’s case, and did not emphasize the inconsistencies in the complainant’s evidence. The appellant submits that, in the result, there was a burden on him to provide evidence in violation of the presumption of innocence, and that the jury must have been aware that the trial judge viewed the appellant as guilty.

[7] We do not accept these submissions.

[8] The trial was not unfair, and the burden of proof was not reversed. The trial judge gave multiple instructions: (i) confirming that the jurors were the judges of fact and when he spoke about the evidence, they were free to disagree; and (ii) that the burden of proof was on the Crown and that never changed. The trial judge also gave an extensive review of the inconsistencies in the complainant’s evidence.

[9] The appellant further submits that the trial judge made legal errors with respect to each count.

Human trafficking

[10] The relevant sections of the Criminal Code, R.S.C. 1985, c. C-46 provide:

279.011 (1) 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… [Emphasis added.]

279.04(1) For the purpose 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 another person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

[11] The appellant submits that the judge erred in relation to “the purpose” element of the section. The appellant submits that the judge erred by instructing the jury that the actual exploitation of the complainant (which was not in dispute) could lead the jury to infer that the appellant intended to exploit her. In other words, the trial judge concentrated on the actus reus and ignored the mens rea. The appellant says that there was no evidence of his state of mind in relation to the exploitation. In particular, he submits that there was no evidence that he was aware of what was happening in the hotel room when he was not there, and that he did not witness the coercive conduct of the other two men. Consequently, it was wrong for the jury to infer that his purpose was to exploit or facilitate the exploitation of the complainant because there was insufficient evidence of knowledge on his part.

[12] We do not accept this submission. The trial judge referred the jury to the communications before the appellant brought the complainant to the hotel room. The evidence also included that the appellant left the complainant to work for a known pimp, returned to the hotel room after the complainant had been assaulted and trafficked, and again left her in the control of the known pimp. It was open to the jury to infer, based on the evidence, that the appellant’s actions were for the purpose of exploiting the complainant or facilitating her exploitation.

Procuring a person under the age of 18

[13] The Criminal Code provides:

286.3(2) Everyone who procures a person under the age of 18 years to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(2), recruits, holds, conceals or harbours a person under the age of 18 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…

[14] This court’s decision in R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, at para. 59 provides that there are two modes of committing the actus reus of the procuring offence: (i) the accused “procures a person to offer or provide sexual services for consideration”; or (ii) 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.”

[15] The indictment under which the accused was charged only referred to the first mode, not the second. The trial judge, who did not have the benefit of Gallone, went beyond the first mode to include the second. Since the two modes are distinct with separate mental states required for each, the appellant alleges that the charge included a fatal error.

[16] We do not accept this submission for two related reasons.

[17] First, the trial judge repeated, at least five times, that the fault requirement for procuring is satisfied if the accused intentionally caused or induced the person to provide sexual services for consideration. The charge also repeated the requirement of intent to procure. The jury was clearly instructed on the fault element for the first mode of committing the procuring offence.

[18] Second, there is no prejudice to the appellant. He was convicted of human trafficking, the elements of which include the second mode of committing the actus reus of the procuring offence. In that regard, the trial judge instructed many times that the jury must be satisfied that the appellant intentionally recruited, held, concealed, harbored, or intentionally exercised control, direction, or influence over the movements of the complainant. In the context of the charge as a whole, we are satisfied that the trial judge effectively charged the jury on the mens rea for the second mode of the procuring offence.

Material benefit from human trafficking

[19] The Criminal Code provides:

279.02(2) Everyone who receives 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 279.011(1), is guilty of an indictable offence…

[20] The appellant submits that the verdict was unreasonable because there was no evidence that he received a benefit from the complainant’s sex work. He further submits that, if the jury was to rely solely on circumstantial evidence, a Villaroman instruction should have been given confirming that his guilt was the only reasonable inference: see R. v. Villaroman, 2016 SCC 33, [2016] S.C.R. 1000.

[21] We do not accept this submission.

[22] Villaroman, at para. 20, refers with approval to R. v. Fleet (1997), 26 O.R. (3d) 542 (C.A.), and at paras. 20 and 30 rejects the necessity for any formula of words to be used in the case of circumstantial evidence. According to Fleet, as cited in Villaroman, at para. 20, the object may be achieved by charging the jury:

a) in accordance with the traditional language of proof beyond a reasonable doubt; or

b) in accordance with that language and pointing out to the jury the other inferences that the defence says should be drawn from the evidence and the necessity to acquit the accused if any of those inferences raises a reasonable doubt; or

c) charging the jury that it must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the reasonable facts.

[23] The trial judge reminded the jury that there was no direct evidence that the appellant had received a benefit. When he re-instructed the jury in response to a question, he emphasized that the Crown must prove the receipt of a material benefit beyond a reasonable doubt. He further said that any reasonable doubt in this regard must result in an acquittal.

[24] The charge complies with the first two options in Villaroman.

[25] The evidence was clear that the appellant had a financial motive for recruiting the complainant. The complainant was given none of the money paid for her services. She was given only drugs. The appellant had earlier communicated his cut. It was open to the jury to conclude that the appellant received a material benefit.

[26] The charge was not in error.

[27] Accordingly, the appeal is dismissed.

“Alexandra Hoy J.A.”

“M.L. Benotto J.A.”

“L. Sossin J.A.”