WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) Mandatory order on application.

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.

486.6 Offence.

(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.

Court Information

Court File No.: Toronto

Date: 2016-02-23

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Tyrone Burton

Before: Justice Mara Greene

Reasons for Judgement Released: February 23, 2016

Counsel:

M. McRae ……………………………………………………………… for the Respondent

C. Langdon ……………………………………………………………. for the Applicant

M.B. Greene J.:

Background

[1] This ruling addresses whether or not the offence of human trafficking, as committed by Mr. Burton on V.C. and A.O. is a serious personal injury offence as defined by section 752 of the Criminal Code.

[2] Mr. Burton was charged with a number of different offences in relation to two young women, A.O. and V.C. Both their identities are protected by a publication ban. After a trial, Mr. Burton was convicted by Justice Cavion of the following offences:

a) Exercising control over V.C. and A.O.;

b) Trafficking in persons, namely V.C. and A.O.;

c) Receiving a material benefit from trafficking in persons namely V.C. and A.O.;

d) Withholding the passports belonging to V.C. and A.O.; and,

e) Obstructing justice

[3] After the convictions but before sentencing the trial judge retired. As a result, the sentencing hearing is proceeding before me. The Crown has given notice of her intention to ask for an assessment so as to determine the viability of a dangerous offender application in relation to Mr. Burton. Prior to even addressing the issue of whether an assessment should be ordered, the Court must first be satisfied that Mr. Burton has been convicted of an offence that opens the door to a dangerous offender designation. Crown counsel argued that the offence of Human Trafficking, which is a designated offence under s.752 of the Criminal Code, opens the door to the possibility of a dangerous offender designation because it is a serious personal injury offence (hereinafter SPIO). Crown counsel argued that given the findings of fact made by Justice Cavion and the evidence presented in the victim impact statement and viva voce evidence of the victims about the impact of this offence on their lives, the court should be satisfied that the offence of Human Trafficking, as committed by Mr. Burton meets the test for an SPIO. Counsel for Mr. Burton argued that while Justice Cavion found that Mr. Burton exploited V.C. and A.O. and acted as their pimp, he never hurt V.C. or A.O., he never threatened V.C. and A.O. and, any harm suffered by both V.C. and A.O. was a product of their own choices and cannot be attributed to Mr. Burton's actions.

Brief Summary of Evidence

Trial Evidence

[4] V.C. and A.O. were nineteen years old when they met Mr. Burton. In the year preceding meeting Mr. Burton, V.C. and A.O. became friends and spent a lot of their time together. They drank a lot, started using drugs and started to dabble in prostitution to pay for their drugs and alcohol.

[5] On the night that A.O. and V.C. met Mr. Burton, they had both come to Toronto to meet with a john. After the transaction was completed both A.O. and V.C. decided to stay in Toronto for the night. This was when V.C. met Mr. Burton.

[6] After meeting Mr. Burton both A.O. and V.C. partied with Mr. Burton and some of his friends. This partying included using crack cocaine. During the night, A.O. left with a person she met that night and attended a different party while V.C. stayed with Mr. Burton. Later the next morning, A.O. returned to the hotel where she had last seen V.C., but V.C. was no longer there. A.O then returned to Kingston without V.C.

[7] V.C., in the meantime, became sexually involved with Mr. Burton, moved in with him and started to work as a prostitute for him. A day or two later, A.O. contacted V.C. to see if she was alright. V.C. advised that she was working for Mr. Burton and encouraged A.O. to move to Toronto and join her. A.O. testified that she was concerned about V.C. but that V.C. also made the work sound beneficial, so she came to Toronto the next day. Her first day in Toronto, she immediately started to work as a prostitute for Mr. Burton.

[8] A.O. testified that upon arriving in Toronto, even though V.C. advised that she was happy, she looked terrible and A.O. was quite concerned. A.O. testified that she noticed that V.C. did whatever Mr. Burton told her to and did not act at all like herself.

[9] In relation to the work she thought she would be doing, A.O. testified that Mr. Burton misled her on what working for him would be like. He told her that she would make a lot of money and have a good lifestyle. Instead, what transpired was something very different. She worked very hard, had no control over her customers, worked even when she did not want to, made no money as all her money from prostitution went to Mr. Burton, had no freedom of movement as Mr. Burton controlled where she went, and had to follow all of Mr. Burton's rules including cleaning his house, kissing his ring, and having sex with him on demand. V.C. described a very similar situation. This went on for just over a week at which point, through the deceptive acts of another client, V.C. and A.O. escaped Mr. Burton's control and Mr. Burton was ultimately arrested.

[10] According to both A.O. and V.C., they also had to hand over their passports to Mr. Burton. According to both women, the passports remained in Mr. Burton's possession and only came out when they were required to secure a room at a hotel.

[11] V.C. testified that during her time with Mr. Burton, V.C. became physically ill. She had stomach problems and had difficulty eating. A.O. also testified that V.C. looked terrible during this time and was frequently physically ill. Despite being ill, V.C. was still required to see clients. A.O. attempted to protect V.C. by seeing some clients for her. In an attempt to explain in more detail her experience with Mr. Burton, V.C. testified about a particular occasion where she wanted to walk down to the canteen area of the hotel they were working in to purchase orange juice. Mr. Burton, however, would not let her leave to purchase the orange juice until she saw one more client. It was only after servicing another client that Mr. Burton permitted V.C. to get some orange juice.

[12] Both V.C. and A.O. were asked about their reasons for complying with Mr. Burton's demands, their failure to leave him and their reasons for engaging in acts they clearly did not want to do. Both provided different reasons.

[13] V.C. testified that Mr. Burton warned her not to talk to other people because they were dangerous, causing her to be fearful of others. She further testified that she had no money and nowhere to go as her family was not talking to her. V.C. also testified that she did not want to disappoint Mr. Burton. She just wanted him to be happy with her. According to V.C., Mr. Burton never threatened her to stay and he never threatened her with any harm, she nonetheless did not feel like she could refuse his orders. V.C. was unable to articulate in any more detail why she felt this way.

[14] A.O. also testified that Mr. Burton never directly threatened her; she nonetheless was scared of him and felt that she had to obey him. When asked to explain why she felt this way, A.O. testified that from very early on in her interactions with Mr. Burton she felt intimidated. A.O. testified that at first she did not leave Mr. Burton because she was worried about V.C. and did not want to leave her alone with Mr. Burton. Later she felt intimidated and scared of what Mr. Burton would do if she did not obey him. A.O. ultimately testified that she was afraid he would hurt her. When asked for a specific incident that led A.O. to feel this way, A.O. testified about the entire atmosphere surrounding her working for Mr. Burton including that at first there were a number of larger men present, he had her passport, he just ordered them around and she felt intimidated by him. A.O. testified that on one occasion Mr. Burton did state that she would be in trouble if she did not obey the rules. A.O. took this to mean that he would hurt her.

[15] After Mr. Burton was arrested, V.C. continued to work as a prostitute for Mr. Burton indirectly through a third person. This continued until Mr. Burton was arrested and charged with the new offence of Obstruct Justice in relation to some of his communications with V.C.

Findings of Fact Made by Justice Cavion

[16] As noted above, Justice Cavion convicted Mr. Burton of a number of offences including two counts of trafficking in persons (otherwise referred to as human trafficking). In reaching his verdict, Justice Cavion made a number of findings of fact about what took place:

a) In the year prior to meeting Mr. Burton, V.C. and A.O. dabbled in prostitution with a single client;

b) A week before Christmas, 2012, V.C. and A.O. came to Toronto from Kingston to have sex with a different client for money;

c) During the above interaction, V.C. and A.O. drank a lot of alcohol;

d) Upon leaving the hotel where the act of prostitution took place, V.C. and A.O. met Mr. Burton;

e) Both V.C. and A.O. smoked cocaine with Mr. Burton;

f) After this first night, A.O. returned to Kingston but V.C. remained with Mr. Burton and fell in love with him;

g) The following day, A.O. returned to Toronto to be with V.C., who was already under Mr. Burton's control as she had fallen in love with him;

h) The day after A.O.'s arrival, the atmosphere of fear had started. Both A.O and V.C. provided their passports to Mr. Burton, were forced to clean the apartment and were advised that there were rules they had to follow;

i) During the week that followed, A.O. and V.C. worked for Mr. Burton as prostitutes at a number of different hotels;

j) Mr. Burton took all the money earned by both women;

k) Mr. Burton parsed out food, cigarettes and alcohol to the two women at his sole discretion;

l) The women had to call him "daddy" and kiss his ring;

m) The time with Mr. Burton caused V.C. to be physically ill;

n) That Mr. Burton created an atmosphere of fear and control over the women; and,

o) That the exploitation by Mr. Burton ended when a client took both women away from Mr. Burton and then a different client called the police.

[17] In reaching his conclusion that Mr. Burton was guilty of the charge of human trafficking pursuant to section 279.01(1) of the Criminal Code, Justice Cavion wrote:

The question is: Did Mr. Burton exercise control, direction or influence over the movements of [A.O.] and [V.C.] for the purpose of exploiting them. No consent is valid in this charge. [names omitted in this judgment to protect the identity of the victims]

[18] Justice Cavion further held that the word exploitation as defined in section 279.04(1) imports "an issue of threats to safety". Later in his judgment, Justice Cavion wrote:

In section 279.04(1) the word "exploitation" is defined as "engaging in conduct that, in all 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…service. Clarification is provided in subparagraph 2) in determining whether an accused exploits another person…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.

He further wrote:

in my opinion, Mr. Tyrone Burton's behaviour, by any reasonable criteria adopted, showed his intention to control and did control the two girls with the concomitant element of threats and, additionally, in the case of [V.C.] by his use of deception in permitting her to think he was her boyfriend. (name of victim omitted in this judgment to protect her identity)

[19] Justice Cavion ultimately concluded that while no overt threats or use of violence was imposed on V.C. and A.O. to originally encourage them to work for him, as V.C. did so out of love and A.O. did so to protect V.C., he found that once under Mr. Burton's control, he "created a context of fear and control over them, it was impossible for them to think they could walk away safely. They had no money, no place to go". He further concluded that "this was an arrangement motivated by fear of unspoken consequences of possible harm".

Victim Impact Information

A.O.

[20] According to A.O., one of the johns that Mr. Burton arranged for her to work for was very violent with her. He tied her wrists behind her back, blind folded her and then whipped her. As a result of this attack, A.O. had bruises on her back and buttock area. Mr. Burton noticed the bruising to A.O.'s back right after the event, but still arranged for her to meet with a new john. A.O. testified that she felt she could not refuse to work. A few days later, the same man who beat A.O. returned and A.O. had to work for him again.

[21] A.O. further testified that each morning she felt forced to have sex with Mr. Burton, even though she did not want to have sex with him. A.O. testified that Mr. Burton would threaten that if she did not have sex with him he would "do anal" on her. As a result, she and V.C. would take turns having sex with Mr. Burton even though they were usually too exhausted to have sex after spending the whole night/day having sex with clients. Moreover, A.O. testified that she had to engage in a number of sexual acts with clients that she did not want to do. A lot of what she was required to do with her clients was degrading and creepy.

[22] A.O. testified that her life has been significantly altered because of her time with Mr. Burton. She now assumes that any man that talks to her only wants to have sex with her. She is not a whole person. Moreover, the memories of that week with Mr. Burton are so strong and hard to handle that she has struggled with alcohol and drug abuse. She testified that she had to be drunk just to be normal.

[23] A.O. testified that after the incidents with Mr. Burton, she was able to get herself on track for some time. She went to school, was not abusing drugs and alcohol and was doing really well. After some time though, as the trial came near and because she started to work with vulnerable people, the memories of what took place came flooding back. A.O. then returned to drugs and alcohol just to block out the memories.

[24] A.O. further testified that she never used protection during her sexual relations with the johns and with Mr. Burton. As a result, when she finally escaped, she spent a lot of time worrying that she had contracted HIV.

[25] At the time of providing her victim impact information, A.O. was still emotionally scarred from her past life, suffering from significant self–esteem issues and had ongoing difficulties with her relationships with others. According to A.O. her father did not look at her the same way after the events with Mr. Burton and she feels like she is constantly being judged. She does not have normal relationships.

[26] At the present time, A.O. has fears of Mr. Burton. The police and others have told her how dangerous he is. She worries that even though he is in jail he will have friends in the community that will hurt her.

V.C.

[27] V.C. testified that some of her clients, while working for Mr. Burton, were rough with her, she did not suffer any bruising and was unable to provide any examples or details. Mr. Burton, however, was never violent with her.

[28] During her time with Mr. Burton, however, she became physically ill. She had stomach problems; she vomited, was nauseous, and could not even look at herself in the mirror. All these physical ailments, V.C. attributed to the emotional strain she was under while being controlled by Mr. Burton. V.C. testified that she felt disgusted with herself and it started to impact her physically.

[29] V.C. testified that her working for Mr. Burton ended when A.O. arranged for another client to help them escape. V.C. did not want to leave Mr. Burton. Once they were out of Mr. Burton's control, this same client then proceeded to sexually assault V.C. V.C. continues to suffer emotionally from the harm caused by the man who sexually assaulted her after she left Mr. Burton. She has a panic attack whenever she thinks about it.

[30] As noted above, after Mr. Burton's arrest, V.C. continued to work for Mr. Burton, indirectly through a third party. She also continued to communicate with him.

[31] V.C. testified that as a result of the offences committed by Mr. Burton, her relationships have changed. Her family does not look at her the same way and her mother in particular is disappointed in her. She also testified that her family does not understand how she could have continued to work for Mr. Burton even after his arrest. This fact has really changed her family's relationship with V.C. Moreover, V.C. testified that she thinks less of herself because of what happened with Mr. Burton.

[32] Since meeting Mr. Burton, V.C. has had difficulty sleeping, difficulty interacting with people and has a hard time forming new relationships. V.C. also feels guilty for talking to the police about Mr. Burton. At the time of giving her victim impact evidence, V.C. was still conflicted about her feelings for Mr. Burton and what his intentions were in relation to her. This led V.C. to repeatedly state that her feelings are very confusing to her. One of her most telling statements however was when asked about what impact her time with Mr. Burton had on her she stated "if you are wanting to be with just one person how would you feel like if you had that many people touching you. It is just really confusing".

[33] Throughout her evidence, V.C. broke down crying many times and had a difficult time expressing herself. Her emotional turmoil was palpable.

[34] V.C. admitted in her evidence that she had engaged in prostitution both before and after working for Mr. Burton. She admitted to abusing alcohol and other drugs prior to meeting Mr. Burton and having problems in her life long before meeting Mr. Burton. It was evident that V.C. has very low self-esteem, has difficulties with substance abuse and does not trust people. V.C. candidly admitted that all her problems do not arise from Mr. Burton. She further acknowledged that separating out which perpetrator has caused her the most harm, or which harm, is an impossible task.

Issues Raised

[35] As previously noted, the sole issue to be decided is whether or not the offence of human trafficking, as committed by Mr. Burton, is an SPIO. In the case at bar, the Crown did ask the court to go a step further and declare that the offence of human trafficking will always meet the definition of an SPIO. With respect, I decline to do so. Firstly, there was not a proper record put before the court to address this broader question. Secondly, there are very persuasive decisions from courts higher than this one that have held otherwise (see R. v. Burton, 2013 ONSC 3021). Thirdly, it is my view that such a finding is outside the scope of what I am tasked to do in this case.

[36] With that said, I turn to the real issue I am required to address which is whether the offence of human trafficking as committed by Mr. Burton is an SPIO.

[37] Pursuant to section 752 of the Criminal Code, a serious personal injury offence is defined as an indictable offence involving:

i) the use or attempted use of violence against another person; or

ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, where the offender could receive a sentence of 10 years imprisonment or more; or

iii) an offence or attempt to commit an offence under s. 271 (which is not applicable to the case at bar)

[38] The Supreme Court of Canada in R. v. Steele 2014 SCC 61, at paragraphs 35 and 36 held that the requirement that offences meet the definition of an SPIO before the dangerous offender provisions are engaged serves a necessary gatekeeping function. It serves to ensure that when the dangerous offender provisions are employed, the sentence imposed will not be disproportionate to the offence. If the courts interpret the scope of an SPIO too narrowly, this will undermine parliament's goal of protecting the public. If the provision is interpreted too broadly, however, it will dilute the gatekeeper function and jeopardize the overarching objective of proportionality. The court is required to keep this in mind when determining whether a particular offence is an SPIO.

[39] I further note that in R. v. Steele, supra, the Supreme Court of Canada held that the three subparagraphs referenced above are not mutually exclusive (at paragraph 56).

[40] There is no issue in the case at bar that Mr. Burton was convicted of an indictable offence and that the offence of Human Trafficking carries a maximum sentence of greater than ten years. What is in issue is whether the conduct engaged in by Mr. Burton,

a) Involved the use of violence or threat of violence; or

b) Endangered or was likely to endanger the life or safety of V.C. and/or A.O.; or

c) Inflicted or was likely to inflict severe psychological damage on A.O and/or V.C.

[41] Counsel for Mr. Burton argued that the Crown has failed to establish any of the above routes while Crown counsel argued that all three avenues are fulfilled in the case at bar.

Burden of Proof

[42] Counsel for Mr. Burton argued that the Crown must prove beyond a reasonable doubt that the offences for which Mr. Burton was convicted are Serious Personal injury offences. In making this argument, counsel points to the general legal principle that all aggravating factors must be proven beyond a reasonable doubt. Since being an SPIO can be seen as an aggravating factor, it is reasonable to conclude that it must be proven beyond a reasonable doubt.

[43] While I see the logic in this argument, in my view, the case law does not support this conclusion. In R. v. Steele, supra, at paragraph 33, the Supreme Court of Canada held that a justice must only be "satisfied" that the offender has been convicted of an SPIO. The Court stated:

There are also substantive requirements to be met. Before the court remands an offender for assessment, it must be satisfied first, that the offender has been convicted of an SPIO as defined in s.752. Second, there must be reasonable grounds to believe that the offender might be found to be a dangerous offender under s.753 or a long-term offender under s.753.1. The SPIO requirement comes into play once again at the stage of the application for a finding that the offender is a dangerous offender, as the court must be satisfied that the offence is an SPIO before making such a finding: s.753(1). [Emphasis added]

[44] In my view, the Supreme Court of Canada carefully chose its words in repeating twice in the same passage that the court must be "satisfied" that the offence is an SPIO. It is easily contrasted with the courts language in holding that the second consideration requires proof on reasonable grounds. Moreover, merely a few passages later, in paragraph 37, the Court employed yet another standard; the Court stated that the judge "must be satisfied beyond a reasonable doubt" of the likelihood of future dangerousness to society before an offender can be declared a dangerous offender as opposed to just using the word "satisfied" for this criterion. In my view, these passages support the conclusion that the Crown need not prove that an offence meets the definition of an SPIO beyond a reasonable doubt.

[45] Moreover, not requiring the Crown to prove that an offence meets the definition of an SPIO beyond a reasonable doubt is also consistent with the process the Court must engage in when making this determination. Whether or not an offence meets the definition of an SPIO is not an additional evidentiary burden, but a legal question. As noted in R. v. Trembley, [2010] O.J. No. 3450 (SCJ), at paragraph 47, "whether an offence is a serious personal injury offence is not a pure question of fact but a determination of law based upon fact…". While the Court need only be "satisfied" that the offence meets the definition of an SPIO, I agree with counsel for Mr. Burton that the underlying essential elements of an SPIO must be proven beyond a reasonable doubt. To that end, I note that the Crown is always required to prove all the essential elements of the underlying offence and the aggravating facts of that offence beyond a reasonable doubt. This would include proof that the offender committed an offence that involved the use of violence or threat of violence as well as proof that the conduct endangered the safety of the victim or caused the victim severe psychological damage. It then falls on the trial judge to apply the law to the proven facts and made a legal determination that those actions meet the definition of an SPIO.

[46] I therefore find that while the Crown must prove the underlying aggravating factors beyond a reasonable doubt, the Court then considers all the evidence and the law and determines if it is satisfied that the offence is an SPIO as defined by the Criminal Code.

[47] With this in mind I turn to the three different prongs the Crown argues are at play in the case at bar:

1. The Use of Violence or Threat of Violence

[48] The case law is clear that under this prong the Crown need not prove that the offender engaged in actual violence. All that is required is that there was a threat of violence with an intention to cause to harm.

[49] Counsel for Mr. Burton argued that there was no use of violence or threat of violence used by Mr. Burton in the case at bar. To that end he properly refers to the evidence of both V.C. and A.O. where they stated very clearly that Mr. Burton never hurt them physically nor did he overtly threaten them. Moreover, Justice Cavion, in his reasons for judgment specifically found that no overt threats were made by Mr. Burton to V.C. or A.O.

[50] Crown counsel argued, that despite this evidence, and this clear finding by Justice Cavion, this prong is still made out. She argued that overt threats are not required. All that is required is some form of threatening behaviour, that the defendant intended to be taken as threatening and that there was an intention to cause harm, a fact that Justice Cavion clearly found had been proven beyond a reasonable doubt.

[51] In his reasons for judgment, while justice Cavion clearly found that no overt threat was made by Mr. Burton, he did, in my view, find that implied threats were made. I reach this conclusion based on a number of different passages in Justice Cavion's ruling. At one point in his judgment, Justice Cavion stated:

in my opinion, Mr. Tyrone Burton's behaviour, by any reasonable criteria adopted, showed his intention to control and did control the two girls with the concomitant element of threats and, additionally, in the case of V.C. by his use of deception in permitting her to think he was her boyfriend (name omitted to protect the identity of the victim).

[52] Justice Cavion further found that Mr. Burton "created a context of fear and control over them, it was impossible for them to think they could walk away safely. They had no money, no place to go." He also found that "an atmosphere of control and fear permeated their involvement with Mr. Burton from day one".

[53] In my view, a plain reading of Justice Cavion's ruling as a whole and in particular the passages outlined above, leads to only one conclusion; that Justice Cavion found that in relation to at least one of the women, Mr. Burton intentionally controlled them with a form of implied threats. I appreciate that one might argue that there is some ambiguity in his ruling as it relates to V.C. because in addition to the above passages, Justice Cavion also referenced the use of deception by Mr. Burton on V.C. and that V.C. acted out of love for Mr. Burton. Moreover, in many of his findings of fact, Justice Cavion did not clearly indicate whether his findings of fact related to both victims or to only one of the victims. This, in my view, is important because V.C. and A.O. describe very different motivations for their actions. They also describe their relationships and interactions with Mr. Burton differently. One was in love with him and the other was not. Nonetheless, I am satisfied that his judgment supports the finding that Justice Cavion concluded that Mr. Burton intended to control both V.C. and A.O. through implied threats of violence. While Justice Cavion did note that V.C. originally acted out of love for Mr. Burton, he also found that once under his control, Mr. Burton used fear to continue that control. Moreover, in the passage cited above, while Justice Cavion clearly found that Mr. Burton deceived V.C. and used this deception to control her he also found in addition to using deception with V.C. he intended to control "the two girls" with the concomitant element of threats"

[54] Defence counsel forcefully argued that in relation to V.C. Justice Cavion did not find, nor could he reasonably conclude that V.C. was threatened in anyway; be it overtly or implicitly. Threats were not required. V.C. was prepared to do anything for Mr. Burton because she loved him and had nowhere else to go. While I appreciate the merits of this argument and that it was a viable argument that could have been made at trial, Justice Cavion, in my view, reached a different conclusion.

[55] In relation to A.O., counsel for Mr. Burton argued that the bald assertion by A.O. that she was intimidated absent any clear explanation for why she felt intimidated is insufficient to establish the presence of a threat of violence beyond a reasonable doubt. I agree that had there been no evidence to justify A.O.'s feeling of being intimidated beyond her own biases or unreasonable beliefs, this prong would not be met. I disagree, however, that A.O.'s evidence amounted to a bald statement by A.O. that she was intimidated without any basis for why she felt this way. I agree that A.O. had a very difficult time articulating what it was specifically about Mr. Burton that intimidated her and why she felt threatened and scared to leave or disobey him. She did, however, manage to express herself by highlighting the nature of the relationship. A.O. testified about Mr. Burton originally having other large men around, he made up rules and dictated those rules to the women as though they could not be questioned; he controlled their movements, money and access to food. In short, he created an overall atmosphere of intimidation. In addition to being able to adequately describe what was obviously an atmosphere of oppression and intimidation, A.O. was also able to relate one incident of an obvious implied threat. A.O. testified that on one occasion Mr. Burton told her that she would be in trouble if she did something wrong. Given the overall context of their relationship, A.O. reasonably believed that by "trouble", Mr. Burton meant that he would hurt her.

[56] When I consider Justice Cavion's above findings in conjunction with the evidence I outlined above, I am satisfied that Justice Cavion found that the Crown had proven beyond a reasonable doubt that Mr. Burton's conduct that amounted to the trafficking of A.O. and V.C. included an implied threat of violence to them if they failed to comply with his rules and orders. I further find that Justice Cavion found that this implied threat was intentional and was meant to be taken seriously so that both A.O. and V.C. would in fact obey Mr. Burton.

[57] In light of these findings, I am satisfied that in relation to the two counts of trafficking in persons, this prong has been met. I therefore find that the offences of Human Trafficking as committed by Mr. Burton in relation to V.C. and A.O. meets the definition of a serious personal injury offence.

2. Endangered or Was Likely to Endanger the Safety of V.C. and/or A.O.

[58] Under this prong, the Court does not look at the presence or absence of violence per se in the commission of the offence. Instead, the Court must consider the effect of the offending conduct on the victim (see paragraph 58 of R. v. Steele, supra).

[59] In the case at bar, the Crown strenuously argued that both V.C.'s and A.O.'s safety was endangered by Mr. Burton's criminal actions. She argued that their safety was placed in danger in a number of different ways. Firstly, she argued that Mr. Burton sexually assaulted them daily which caused danger to their safety; secondly, she argued that they were sexually assaulted by every client they had sex with against their will; thirdly, that both suffered specific instances of abuse from the clients arranged by Mr. Burton, and fourthly, that their safety was endangered because they were not allowed to use condoms.

[60] Defence counsel's main submission on this point was that whatever consequences fell on V.C. and A.O as a result of their prostitution related activities, it cannot be attributed to Mr. Burton. Counsel argued that A.O. and V.C. engaged in prostitution of their own free will. He argued that both these women engaged in prostitution prior to meeting Mr. Burton and continued to engage in prostitution after meeting Mr. Burton. They made the decision to engage in prostitution because unfortunately they felt they had no other way to support themselves and to support their drug use. It was V.C.'s and A.O.'s decision alone to use drugs and engage in prostitution that put their safety in danger, not Mr. Burton's decision to capitalize on their choice.

[61] While I appreciate that the above inference was one a trial judge could have made at the conclusion of the trial given the record before the court, it is not, however, the conclusion that Justice Cavion reached and I am bound by Justice Cavion's findings of fact. Justice Cavion found as a fact that "this was not a business arrangement between two hardened hookers and a pimp. This was an arrangement motivated by fear of unspoken consequences, of possible harm." In reaching this conclusion, Justice Cavion referenced specific evidence including A.O.'s evidence that she "just did not want him to hurt me". In light of this finding of fact reached by Justice Cavion, it is not open for me to conclude that A.O and V.C. freely chose to engage in prostitution for Mr. Burton. This, however, does not end the analysis. I must still turn my mind to whether or not A.O.'s and V.C.'s safety was endangered by Mr. Burton's criminal conduct.

[62] I will first deal with the allegation that Mr. Burton sexually assaulted both V.C. and A.O. In my view, the evidence does not support a finding that V.C. was sexually assaulted by Mr. Burton. The evidence from the trial and from the victim impact evidence clearly establishes that V.C. was in love with Mr. Burton and was willing to do anything for him out of that love. She wanted to make him happy and was willing to do anything for him regardless of the consequences to her. I cannot find that she was sexually assaulted by Mr. Burton. In relation to A.O., while she did testify at the sentencing hearing that she felt she had to have sex with Mr. Burton every morning and every night, despite the fact that she often did not want to, I note that Mr. Burton was not charged with sexual assault. Moreover, the allegation of Mr. Burton sexually assaulting her is not a necessary element of the offence of human trafficking. While there was some cross-examination on this issue in relation to the allegations of control, there was no broader cross-examination on all the essential elements of sexual assault, because Mr. Burton was never charged with sexual assault. While I appreciate the Crown's position, that A.O.'s evidence does provide some evidence of a sexual assault, given that this was not an actual charge before the court, it would contrary to principles of due process to use this as a basis of finding that the offence before the court is an SPIO.

[63] In relation to the Crown's second argument, that both women were sexually assaulted by every client that Mr. Burton forced them to have to sex with, I find this to be a more compelling argument in some respects. Justice Cavion found, that initially A.O. and V.C. engaged in prostitution with Mr. Burton acting as their pimp for different reasons. V.C. did so because she loved Mr. Burton and A.O. did so as a means to protect V.C. Given this finding, the initial sexual acts with clients cannot be seen as harm suffered by Mr. Burton's conduct. Justice Cavion went on to find, however, that at some point, both V.C. and A.O. continued to work for Mr. Burton out of fear. While no direct or overt threat was made, Mr. Burton had created an atmosphere of control and fear such that no overt threats were required by Mr Burton to compel V.C. and A.O. to work as prostitutes. Given Justice Cavion's finding, it logically flows that neither V.C. nor A.O. were voluntarily engaging in prostitution because, their consent was not free and voluntary. I note that both women, during their victim impact evidence testified that they did not really want to have sex with all the clients that they worked with while under Mr. Burton's control. Having said that, it is difficult for me to conclude that each sexual act that V.C. and A.O. committed while under Mr. Burton's control was effectively a sexual assault in law. In my view, this approach is too simplistic given the record before this court. Notions of consent in the context of prostitution are complicated, in particular where, as in this case, the client had no knowledge that the decision to engage in sexual acts for money is not a decision that the victim made freely. While it may be that in some cases of human trafficking, the consent issues are clearer such that a finding of sexual assault by each client can be made, given the facts of this case, I am unable to reach that conclusion. This is not to say that V.C. and A.O. did not feel sexually violated. Nor does this mean that no harm arose from them being coerced into working as prostitutes for Mr. Burton. It only means, that I do not find that Mr. Burton is guilty of sexual assault in relation to every sexual transaction between V.C. and A.O. and the clients they serviced while working for Mr. Burton.

[64] The Crown further argued that the conduct engaged by Mr. Burton endangered A.O.'s safety because it led to her being badly assaulted by one her clients. During her victim impact evidence A.O. testified that one of her clients tied her up and then physically assaulted her. As a result of this attack, A.O. was badly bruised, an injury that Mr. Burton saw. A.O., nonetheless had to service this client a second time. In my view, the physical harm suffered at the hand of this client, is directly linked to the offence of human trafficking as committed by Mr. Burton on A.O. Justice Cavion found beyond a reasonable doubt that Mr. Burton created an atmosphere of fear and control such that it caused A.O. to engage in prostitution against her free will. This led to A.O. being physically abused by a client. In my view, this evidence establishes beyond a reasonable doubt that Mr. Burton's criminal conduct endangered A.O.'s safety. As such, I find that the offence of human trafficking as committed by Mr. Burton on A.O. is an SPIO.

[65] In relation to V.C., the Crown argued that her safety was endangered because the client that helped her and A.O. escape from Mr. Burton (an escape that V.O. did not appear to want) ended up sexually assaulting her. With respect, I disagree with the Crown's argument on this point. V.C. did not want to leave with this particular client. It was A.O.'s idea. Moreover, at the time of this sexual assault, Mr. Burton was no longer committing the offence of human trafficking. In my view, while I have no doubt that V.C.'s safety was clearly endangered when she was sexually assaulted by this person, this harm cannot be directly linked to Mr. Burton's criminal conduct such that this prong is engaged. The sexual assault by this third person, when he was not a client engaged in services controlled by Mr. Burton, while a horribly tragic event for V.C., is too remote to be attributed to Mr. Burton. The Crown further argued that V.C. testified to the fact that some of her clients used force. In my view, V.C.'s evidence on this point was too vague to make a positive finding that V.C.'s safety was endangered by Mr. Burton's criminal conduct.

[66] The final argument raised by the Crown was that both V.C. and A.O.'s safety was endangered because Mr. Burton prohibited them from using condoms. In my view, this argument does not accord with the evidence. A.O. was inconsistent on this point and Justice Cavion made no finding of fact on this point. When I consider all the evidence, I am left in a real doubt as to whether or not condoms were available.

[67] In addition to the argument that Mr. Burton's conduct did endanger V.C.'s and A.O.'s safety, the Crown also argued that even if it did not cause actual harm, it was likely to endanger their safety or life. To support this argument, the Crown focused on the vast number of cases that speak to the inherent harm in prostitution. I appreciate the dangers of prostitution and that the likelihood of any prostitute being harmed by one of her clients is high, particularly where the woman engaging in prostitution does not have the freedom to self-select her clients and take steps to protect herself as in the case at bar. Having said that, given the short time that V.C. and A.O. were with Mr. Burton, I am unable to conclude that there was a likelihood of danger to their lives or safety. To that end I note that Justice Trafford in R. v. Burton 2013 ONSC 3021, when faced with a similar argument stated:

But this Ruling does not call for a panoramic discussion of these well-known harms associated with prostitution. This Ruling is about the legal significance of what actually happened to A.T. and whether it amounted to a SPIO. This analysis does not allow for speculation about what might have befallen A.T. had things gone differently had she not said "no". (at paragraph 11)

[68] Similarly, in my view, the analysis in this case does not allow me to speculate into what might have happened to V.C. or A.O. had they not escaped Mr. Burton's control when they did.

3. Did the Nature of the Offence or the Conduct Involved Inflict Severe Psychological Harm or Was It Conduct That Was Likely to Inflict Severe Psychological Harm on A.O. and/or V.C.?

[69] This final prong speaks to the psychological harm caused by the criminal conduct. In R. v. Tremblay, [2010] O.J. No. 3450 (SCJ), Karakatsanis J., when sitting as a Superior Court Judge noted that in some cases the psychological damage is inherent to the act itself. In other cases, the extent of the psychological damage will depend on the facts of each case (see paragraph 79).

[70] In R. v. Burton, supra, Justice Trafford citing from R. v. Trembley, supra, held:

the cases are clear that "severe psychological damage" is not the equivalent of "any emotional distress". The standard is much higher. As Karakatsanis J (then as a member of this Court) said in R. v. Tremblay, [2010] O.J. No. 3450 (SC) at paras 75-76 "The meaning of "severe psychological damage" was considered in R. v. Cherry, [1996] O.J. No. 267 paras.22-24 (Gen.Div) by analogy to the Supreme Court of Canada definition of "serious bodily harm" in R. v. McCraw, [1991] 3 S.C.R. 72 per Cory J. at para 23 as "any hurt or injury whether physical or psychological that interferes in a substantial way with the physical or psychological integrity, health, or well-being of the complainant." The Court in R. v. Cherry also referred to a corresponding definition of "damage" in the Concise Oxford Dictionary [1991] at para 19 as "harm or injury impairing the health or normal function of a person." The decision in R. v. Cherry was affirmed, [1999] O.J. No. 144 (C.A.) although the issue of severe psychological harm was not addressed in the reasons of the Court of Appeal.

The concept of severe psychological damage acts as a threshold: not just any level of psychological harm will suffice. While I tend to think that "severe psychological damage" must be something more than "serious psychological harm", I accept that severe psychological damage requires, at a minimum, a substantial interference with the victim's physical or psychological integrity, health or well-being.

[71] In light of these rulings, severe psychological harm will only be found if there is evidence of a substantial interference with the victim's physical or psychological integrity, health or well-being.

[72] In the case at bar, the Crown urges to me to find that human trafficking inherently causes severe psychological harm. Given the limited record before the court, I am unable to reach this broad conclusion.

[73] The question then becomes whether either A.O. or V.C. suffered severe psychological harm. The biggest difficulty in addressing the presence or absence of severe psychological harm in the case at bar, is that both A.O. and V.C. have suffered a lot in their lives. That is what made them such easy targets for Mr. Burton. This also, however, makes it very difficult for the court to parcel out whether the harm occasioned by Mr. Burton's criminal acts caused them to suffer severe psychological damage.

[74] Despite this obvious barrier, I nonetheless have no difficulty in finding that V.C. suffered severe psychological damage as a result of Mr. Burton's criminal conduct. Both V.C. and A.O. testified about the physical manifestations of the psychological harm V.C. suffered while being deceived and controlled into acting as a prostitute for a man she believed actually loved her. When A.O. first saw V.C. after she moved in with Mr. Burton, she noted how sick V.C. looked. As time went on V.C. started having stomach problems, felt ill all the time and was so disgusted with herself she could not look in the mirror. She was even forced to work when she was feeling sick. This evidence alone provides proof beyond a reasonable doubt that the psychological harm occasioned by Mr. Burton's criminal conduct led to substantial interference with V.C.'s psychological and physical well-being.

[75] Moreover, the emotional way in which V.C. testified about Mr. Burton and the ongoing struggles she continues to have in relation to her feelings towards Mr. Burton and her time spent with him provides further evidence that she suffered not just serious psychological harm but severe psychological damage.

[76] I appreciate that V.C. has suffered many other traumas in her life that also continue to impact her psychologically. I further appreciate that some of the psychological harm she struggles with relates in part to her own abuse of alcohol and drugs and her own choice to start engaging in prostitution. But in my view, an assessment under this prong does not require me to parcel out each traumatic event and apportion a quantitative amount of psychological harm to each event. Instead, I need only be satisfied beyond a reasonable doubt that the criminal conduct of Mr. Burton caused V.C. severe psychological damage. Given the evidence highlighted above, the Crown has met her burden on this point. I accept V.C.'s evidence and A.O.'s evidence that the psychological impact of Mr. Burton's behaviour on V.C. was evident during her time with Mr. Burton where she became physically ill. I further accept beyond a reasonable doubt that much of V.C.'s present difficulties in moving forward, her problems forming relationship of trust and her ongoing intense feelings of self-loathing can be directly linked to her time spent with Mr. Burton. I therefore find that in relation to the charge of human trafficking where V.C. is the named victim that the offence as committed by Mr. Burton in this case is an SPIO.

[77] In relation to A.O., counsel properly pointed out that in the immediate after math of working for Mr. Burton, A.O. actually seemed to have her life in order. She was working, had family support and then started school. This evidence supports the finding that while A.O. clearly suffered emotionally from Mr. Burton's criminal conduct, and I have no doubt the psychological harm is serious, it does not meet the higher standard of severe psychological damage. Crown counsel argued that the court should focus on what took place a year later, when A.O. had to confront the past when getting ready to testify in court instead of being able to push it all to the back of her mind. When faced with the prospect of coming to court and having to revisit the reality of what took place, A.O.'s world fell apart. She returned to drugs and prostitution, dropped out of school and could not sleep. She has negative self-esteem, has poor relationships and abused drugs in order to avoid dealing with the harm caused by Mr. Burton.

[78] The difficulty I have, is that while I have no doubt that A.O. has suffered at the hands of Mr. Burton, I agree with defence counsel, that it is difficult at this stage, in the absence of other evidence to conclude beyond a reasonable doubt that her return to drugs and prostitution, the self-loathing and relationship difficulties can all be attributed to Mr. Burton. I am not saying that A.O. did not suffer. I am not saying that her pain is less important or meaningful than V.C.'s pain. However, on the record before me, given the host of issues in A.O's life and the fact that in the immediate aftermath of Mr. Burton she was able to pull her life together and the clear psychological markers relied upon by the Crown were not present until a year later, I am left in a reasonable doubt that the harm suffered meets the higher standard required by this prong. Given my earlier finding that the offence of human trafficking on A.O otherwise meets the test for an SPIO, my finding on this point was unnecessary in any event.

Released: February 23, 2016

Signed: Justice Mara B. Greene