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 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice Toronto Region

Date: 2016-07-19

Between: Her Majesty the Queen

— And —

Levi Alexander, Jerome Bell & Devon Nolan

Before: Justice D. Oleskiw

Heard on: May 9 – 13, 16, 20, 2016

Reasons for Judgment released on: July 19, 2016

Counsel

M. Bellmore & P. Travers — counsel for the Crown

G. Aristos — counsel for Levi Alexander

S. Chung — counsel for Jerome Bell

E. Alvares — counsel for Devon Nolan

(Please Note: This Judgment has been judicially edited to remove all references to the evidence of the case.)

REASONS FOR JUDGMENT

Oleskiw, J.:

Introduction

[1] All three defendants are charged with both human trafficking offences (ss. 279.01 – 279.04) and prostitution related offences (ss. 286.1 – 286.5) in relation to their alleged pimping of Jane Doe. Levi Alexander also faces assault and related charges and Devon Nolan faces a threatening charge. After hearing evidence at a preliminary inquiry, the Court must decide if there is sufficient evidence as to each of the essential elements of the offences to commit the defendants to stand trial.

The Law

[2] There is little judicial interpretation of the Trafficking in Persons sections of the Criminal Code and even less on the new prostitution sections that were enacted after Bedford. I have found the Handbook for Criminal Practitioners on Trafficking in Persons as well as the Technical Paper: Bill C-36, Protection of Communities and Exploited Persons Act, both published by the Department of Justice Canada, 2015 to provide useful context when considering all of these provisions.

[3] Prostitution-related offences may be seen as one of the subsets of human trafficking behaviour. Each of the offences, however, have their own essential elements. In R. v. Urizar, [2013] Q.J. No. 132, the Quebec Court of Appeal specifically held that the human trafficking offences do not require cross-border movement. Indeed, no movement of victims is required. The Ontario Court of Appeal implicitly accepted this same proposition in R. v. A.A., 2015 ONCA 558, [2015] O.J. No. 4016.

Trafficking in Persons

[4] Canada's first specific offence targeting Trafficking in Persons was enacted in 2002 as part of the Immigration and Refugee Protection Act (IRPA), reflecting Canada's implementation of its international obligation to criminalize trafficking in persons under the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children. Section 118 of the IRPA prohibits trafficking in persons and is punishable by life imprisonment and/or a fine not exceeding $1 million. This offence is limited to the trafficking of persons into Canada.

[5] Subsequently, in 2005 Parliament created three Criminal Code human trafficking offences that do not relate the offences to cross-border movement or to a specific activity. Section 279.01 is the main Trafficking in Persons offence: Section 279.02 prohibits one from receiving a material benefit from trafficking in persons; and section 279.03 prohibits withholding or destroying documents to commit or facilitate Trafficking in Persons.

[6] In 2010, a new offence of trafficking in children was enacted (s. 279.011) and in 2012, the Trafficking in Persons provisions were further amended, inter alia, to clarify the meaning of "exploitation" as defined in section 279.04. Further amendments were made in 2014 which increased maximum sentences and added mandatory minimum penalties.

The Current Relevant Trafficking in Persons Criminal Code Provisions

Trafficking in Persons

279.01 (1) 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 and liable

(a) to imprisonment for life and to a minimum punishment of imprisonment for a term of five years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or

(b) to imprisonment for a term of not more than fourteen years and to a minimum punishment of a term of four years in any other case.

(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid.

Trafficking in Persons under 18

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 and liable

(a) to imprisonment for life and to a minimum punishment of imprisonment for a term of six years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or

(b) to imprisonment for a term of not more than fourteen years and to a minimum punishment of imprisonment for a term of five years, in any other case.

(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid.

Material Benefit

279.02 (1) 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 279.01(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than ten years.

(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 and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of two years.

Exploitation

279.04 (1) 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.

(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

(3) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed.

Essential Elements of the Offences

[7] Generally, the human trafficking offences attempt to capture the different actors along the trafficking continuum, including those who do not directly exploit the victim's labour or services. A conviction for trafficking can be entered for conduct that involves one of the prohibited acts coupled with the intent to facilitate the exploitation of a person by someone else.

Section 279.01 of the Criminal Code — Trafficking in Persons

Every person who recruits, transports, 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

[8] Section 279.01 requires the Crown to establish the following essential elements:

i) Conduct — Commission of one of the prohibited acts; and

ii) Purpose — The mental elements of either (a) having the purpose of exploiting another person or (b) the purpose of facilitating their exploitation by another person.

i) Conduct

[9] The conduct requirement may be established in several different ways including proof of a specific action: recruits, transports, receives, holds, conceals, harbours as well as by proof that the accused "exercises control, direction or influence over the movements of a person". Rather than itemizing specific actions, this latter aspect of the actus reus of the offence characterizes the nature of conduct in terms of the relationship between the accused and the victim in relation to the victim's mobility. As the Quebec Court of Appeal noted in R. v. Urizar, [2013] Q.J. No. 132 at paras. 74-76:

74 In its first part, section 279.01 Cr. C. uses terms that reflect a specific action: recruits, transports, transfers, receives, holds, conceals, harbours. The second part of the section suggests a situation that results from a series of acts rather than an isolated act: exercises control, direction or influence over the movements of a person. These latter terms evoke power, control, or dominance over the person and their movements.

75 Here, Parliament uses the same words as it does in connection with procuring in section 212(1)(h) Cr. C.: "for the purposes of gain, exercises control, direction or influence over the movements of a person ...". In Perreault v. R., this Court defined the essential elements of that offence in these terms:

• [TRANSLATION]

• The element of control refers to invasive conduct, a power that leaves the controlled person with little choice. This conduct therefore includes acts of direction and influence. Direction is exercised over the movements of a person when rules or behaviours are imposed. The exercise of direction does not preclude the possibility that the directed person has latitude or a measure of discretion. The exercise of influence includes less constraining conduct. Any action exercised over a person for the purpose of aiding, abetting or compelling that person to engage in prostitution would be considered an influence.

76 It should be noted that Parliament uses the same expression in connection with trafficking in persons without adding elements relating to forced movement or to situations akin to those of a migrant. Rather, it appears from the wording of section 279.01 Cr. C. that the offence may be committed by actions which serve, to varying degrees, to limit the movements of a person for the purpose of exploiting them or facilitating their exploitation. [emphasis added]

ii) Mens Rea: "For the Purpose of Exploiting or Facilitating the Exploitation"

[10] In the case before me the Crown relies on the "exercise of control, direction or influence" as the prohibited acts. Whichever act is alleged, it must be proved that the alleged action was done either for the specific purpose of exploiting another person or for the specific purpose of facilitating their exploitation by another. It is the exploitative purpose that is central and sets trafficking in persons apart from many other crimes. As both the Ontario Court of Appeal and the Quebec Court of Appeal have held:

The central element of the provisions in question is the criminalization of exploitation. The acts mentioned in the first paragraph of section 279.01 Cr. C. constitute criminal offences only if they are committed for the purpose of exploiting or facilitating the exploitation of a person, regardless of whether or not exploitation actually ensues: R. v. Urizar, [2013] Q.J. No. 132 at ¶. 69

[11] In R. v. A.A., 2015 ONCA 558, [2015] O.J. No. 4016, the Ontario Court of Appeal was interpreting the human trafficking of children offence in s. 279.011. That section only adds a requirement that the Crown prove that the complainant was a member of the prohibited group of people under 18 years old. Accordingly, the Court's analysis is equally applicable to s. 279.01. In A.A., Justice Watt, for a unanimous Ontario Court of Appeal held at paras. 82 – 88:

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. [emphasis added]

[12] Regarding the test set out in section 279.04 for "exploitation", Watt J.A. wrote:

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] 3 S.C.R. 72, at p. 81; and Winko v. British Columbia (Forensic Psychiatric Institute), [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.

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.

[13] Accordingly, sections 279.01 and 279.04 do not require the victim to assert that she feared for her safety or for the safety of someone known to her. Instead, it requires evidence that demonstrates objectively that a reasonable person, standing in the shoes of the victim, would be afraid having regard to all of the circumstances including the age, gender and other considerations specific to the victim, including the circumstances surrounding the relationship which existed between the accused and the complainant.

Prostitution-Related Offences

[14] Sections 286.1- 286.5 create a scheme of new prostitution-related offences. First, prostitution itself is now illegal.

Obtaining sexual services for consideration

286.1 (1) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years and a minimum punishment ....

Material benefit from sexual services

[15] Section 286.2 replaces the old "living on the avails" offence (old s. 212 (1)(j)) that was struck down by the Supreme Court of Canada in Bedford. Section 286.2 now provides:

s. 286.2 (1) 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 286.1(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

Presumption

s. 286.2(3) For the purposes of subsections (1) and (2), evidence that a person lives with or is habitually in the company of a person who offers or provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services.

Exception

s. 286.2(4) Subject to subsection (5), subsections (1) and (2) do not apply to a person who receives the benefit

(a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived;

(b) as a result of a legal or moral obligation of the person from whose sexual services the benefit is derived;

(c) in consideration for a service or good that they offer, on the same terms and conditions, to the general public; or

(d) in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is derived, if they did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good.

No exception

(5) Subsection (4) does not apply to a person who commits an offence under subsection (1) or (2) if that person

(a) used, threatened to use or attempted to use violence, intimidation or coercion in relation to the person from whose sexual services the benefit is derived;

(b) abused a position of trust, power or authority in relation to the person from whose sexual services the benefit is derived;

(c) provided a drug, alcohol or any other intoxicating substance to the person from whose sexual services the benefit is derived for the purpose of aiding or abetting that person to offer or provide sexual services for consideration;

(d) engaged in conduct, in relation to any person, that would constitute an offence under section 286.3; or

(e) received the benefit in the context of a commercial enterprise that offers sexual services for consideration.

Aggravating factor

(6) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that that person received the benefit in the context of a commercial enterprise that offers sexual services for consideration.

Procuring

[16] The new procuring provisions mirror parts of old ss. 212(d) and (h) and merge them. Section 286.3(1) now provides:

286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

[17] The newly stated offence of "procuring" can be proved in one of two ways. First, the term "procure" was interpreted by the Supreme Court of Canada in R. v. Deutsch, [1986] S.C.J. No. 44 at para. 32, as meaning, "to cause, induce or have persuasive effect". This necessarily entails the accused's active involvement in the prostitution of another. The second way the offence can be proved is by establishing that the accused recruited, held, concealed or harboured a person for the purposes of prostitution or 'exercised control, direction or influence over the movements of a person' for that purpose.

[18] Prior to the enactment of the new s. 286.3, the courts interpreted the latter phrase as part of the former procuring offence. In R. v. Perreault, [1997] R.J.Q. 4 the Quebec Court of Appeal answered the question, what constitutes "control, direction or influence over the movements of a person"? for the purposes of then s.212 (1) (h) of the Criminal Code. There it was held,

The element of control refers to invasive behaviour, to ascendancy which leaves little choice to the person controlled. This therefore includes acts of direction and influence. There is the exercise of direction over the movements of a person when rules or behaviours are imposed. The exercise of direction does not exclude the person being directed from having a certain latitude or margin for initiative. The exercise of influence includes less constricting actions. Any action exercised over a person with a view to aiding, abetting or compelling that person to engage in or carry on prostitution would be considered influence. [emphasis added]

[19] This passage of Perreault was re-affirmed by the Quebec Court of Appeal in R. v. Urizar, [2013] Q.J. No. 132 at paras 75, 76, when it applied the same definition to the same phrase used in the human trafficking section, s.279.01.

[20] In R. v. Hamid, [1989] O.J. No. 3205, a case where a doorman to a lounge referred johns to under cover police officers posing as prostitutes and accepted some money from them, Lang, J. applied the dictionary definitions as follows:

13. The Ontario Encyclopedic Digest defines 'control' as:

'the fact of controlling, or of checking and directing action; domination; command, sway.'

14. Black's Law Dictionary (4th Edition) defines 'control' as:

'To exercise restraining or directing influence over; regulate; restrain; dominate; curb' to hold from action; overpower; counteract; govern.'

15. In this case it cannot be said that Mr. Hamid attempted to or did exercise any 'domination' or 'government' over the two women. His actions cannot be described as controlling, dominating or curbing their movements.

16. Did Mr. Hamid then 'direct' or 'influence' their movements?

17. Looking again to the Ontario Encyclopedic Digest for definition, 'direct' is said to be:

'the action or function of directing, aiming, guiding, instructing or administering conduct; instruction; management; administration.'

18. The Shorter Oxford English Dictionary defines 'direct' as:

'to regulate the course of; to guide conduct; to advise.'

19. 'Direction' is defined in Black's Law Dictionary (4th Edition) as:

'the act of governing, management, superintendence.'

While West's Words and Phrases refers to 'direction' as:

'a guiding or authoritative instruction, prescription, order command.'

20. 'Influence' in the Ontario Encyclopedic Digest is:

'to exert influence upon, to affect by influence, sometimes specially to move by undue influence.'

Synonyms for the word are: 'persuade, incline, sway, convince and motivate'.

21. Simply applying the dictionary meanings of these terms it is clear that they all require an element of authority in the actions. Was the accused acting with authority with respect to either of these women? Clearly they had an apparent intention to act as prostitutes and the accused did not initiate their actions and, in fact, initially declined to assist them. [emphasis added]

[21] I am not bound by the trial decision in Hamid. I believe that the legal test is accurately articulated in Perreault, which was affirmed by the Quebec Court of Appeal recently in Urizar. It is also noteworthy that Ontario Court of Appeal cited Urizar with approval on another point, in R. v. A.A. at para. 85.

Material Benefit

[22] The authors of the Technical Paper regarding Bill C-46 take the position that "the new procuring offence requires active involvement in the provision of another person's sexual services; whereas, passive involvement is sufficient to make out the material benefit offence." I agree with this characterization of the general difference between the offences.

[23] In R. v. Bedford, 2013 SCC 72, [2013] S.C.J. No. 72 the Supreme Court of Canada re-affirmed that the purpose of then s. 212(1) (j) was to target pimps and the parasitic, exploitive conduct in which they engage. The Court quoted Justice Cory in Downey at ¶ 137 stating:

It can be seen that the majority of offences outlined in s. 195 are aimed at the procurer who entices, encourages or importunes a person to engage in prostitution. Section 195(1)(j) [now s. 212(1) (j)] is specifically aimed at those who have an economic stake in the earnings of a prostitute. It has been held correctly I believe that the target of s. 195(1)(j) is the person who lives parasitically off a prostitute's earnings. That person is commonly and aptly termed a pimp.

[24] Cory, J., for the Downey majority, cited several reports, including the following at paragraphs 41-42 and 45:

41. A reading of the reports such as those of the Fraser Committee (Pornography and Prostitution in Canada (1985)) and the Badgley Committee (Sexual Offences Against Children (1984)) emphasizes the tragedy and the gravity of the social problem posed by prostitution. As well, they carefully document the cruel, pernicious and exploitative evil of the pimp. In its report to Parliament, the Special Committee on Pornography and Prostitution (the "Fraser Committee") found that most prostitutes in Canada were independent operators. However, in some cities, pimps control street prostitution. The activities of pimps were described in this way:

It appears that pimps do not run large "stables" of prostitutes but usually control two to six women within a well-defined territory. Pimps, along with customers, are the major source of violence against prostitutes. Women who would talk about their pimps indicated that physical violence, forced acts of sexual degradation and subtle forms of coercion, were used by the pimps to keep them on the streets. In some ways the relationship is most closely analogous to slavery. Prostitutes have no control over their lives, they are subject to constant exploitation and there are accounts of prostitutes being traded to another pimp to pay off debts or for money.

(Fraser Committee, vol. 2, at p. 379)

42 The findings of the Committee on Sexual Offences Against Children and Youths (the "Badgley Committee") make particularly sad and disturbing reading. There it was stated that:

Many girls who work on the streets believe that a prostitute who gives evidence against a pimp is almost certain to be murdered, if not by her own pimp, then by his fellow pimps. These murders are purported to be extraordinarily brutal and the prostitutes claim that they are accomplished by severe beatings of head and face. Another palpable fear of female prostitutes which suffices to dissuade many of them from giving information about their pimps is that of being ostracized by the other prostitutes in whose company they work. Furthermore, the Committee's survey indicates that many of the young prostitutes either were "in love" with their pimps, or were psychologically dependent upon them to such an extent that they could not conceive of functioning without them. As a result, many girls adopted a highly protective attitude toward their pimps and were unwilling to divulge information which might have proved damaging to them, or which portrayed them in a negative light.

(Badgley Committee, vol. 2, at pp. 1057-58.)

45. Strangely, despite the abusive and corrosive relationship that exists between the pimp and prostitute, many prostitutes are strongly attached to their pimps and truly believe that they are in love with them. See:

Fraser Committee, supra, at p. 379;

Badgley Committee, supra, at pp. 1057-58;

Weisberg, supra, at p. 9;

New South Wales, Report of the Select Committee of the Legislative Assembly upon Prostitution (1986), at pp. 26-48 (the "Rogan Committee").

[25] In Bedford, the Supreme Court found that former s. 212(1) (j) was overbroad insofar as it punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes, (for example, controlling and abusive pimps) and those who could increase the safety and security of prostitutes (for example, legitimate drivers, managers, or bodyguards). It also includes anyone involved in business with a prostitute, such as accountants or receptionists: see paras. 141 - 142.

[26] In R. v. Grilo, [1991] O.J. No. 413, Arbour J.A., writing for the Ontario Court of Appeal interpreted the "living on the avails" offence as follows at paras. 27 and 29:

27 The parasitic aspect of the relationship contains, in my view, an element of exploitation which is essential to the concept of living on the avails of prostitution. For example, when a prostitute financially supports a disabled parent or a dependent child, she clearly provides an unreciprocated benefit to the recipient. However, in light of her legal or moral obligations towards her parent or child, the recipient does not commit an offence by accepting that support. The prostitute does not give money to the dependent parent or child because she is a prostitute but because, like everybody else, she has personal needs and obligations. The true parasite whom s. 212(1) (j) seeks to punish is someone the prostitute is not otherwise legally or morally obliged to support. Being a prostitute is not an offence, nor is marrying or living with a prostitute. A person may choose to marry or live with a prostitute without incurring criminal responsibility as a result of the financial benefits likely to be derived from the pooling of resources and the sharing of expenses or other benefits which would normally accrue to all persons in similar situations.

29 The true scope of s. 212(1)(j) is thus not completely divorced from its original link with vagrancy. Properly understood in that fashion, s. 212(1) (j) is also more easily distinguishable from s. 212(1) (h), the classic pimping section, which, in essence, prohibits controlling for gain. Living on the avails is directed at the idle parasite who reaps the benefits of prostitution without any legal or moral claim to support from the person who happens to be a prostitute. [emphasis added]

[27] It is noteworthy that the first principle stated in the Preamble to Bill C-46, which created the new prostitution provisions, is that Parliament has "grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it."

Preliminary Inquiry

[28] The test for committal is whether there is sufficient evidence upon which a properly instructed jury, acting reasonably, could find each of the elements of the offence beyond a reasonable doubt. A concise summary of the governing principles this Court must apply in making that determination was set out succinctly by Justice Fuerst, in R. v Brown, 2012 ONSC 6565 at paras. 17 - 18:

17 The Supreme Court of Canada confirmed in R. v. Arcuri, 2001 SCC 54 at para. 21, that a preliminary inquiry judge must commit an accused to stand trial where there is "admissible evidence which could, if it were believed, result in a conviction". The test is the same whether the evidence is direct or circumstantial. If there is direct evidence as to every element of the offence charged, the preliminary inquiry judge must commit the accused to stand trial. Where the evidence is circumstantial, however, there is an inferential gap between the evidence and the matter to be established. The judge must therefore weigh the whole of the evidence in the limited sense "of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw": Arcuri, at para 23. The court emphasized that the preliminary inquiry judge does not draw factual inferences, or assess credibility, or ask whether he or she would conclude that the accused is guilty. The judge asks only "whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt": Arcuri, at para. 30. The task of limited weighing is an assessment of "the reasonableness of the inferences to be drawn from the circumstantial evidence": Arcuri, at para. 30. In other words, the preliminary inquiry judge "must engage in a limited weighing exercise in order to determine whether a properly instructed jury could reasonably draw the suggested inferences": R. v. Slessor, 2007 ONCA 336.

18 Where there are competing inferences to be drawn from circumstantial evidence, the preliminary inquiry judge does not choose among them. Only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77. As long as there is available a reasonable inference in favour of the Crown, then the preliminary inquiry judge must draw it, regardless of its strength: R. v. Sheardown, 2010 ONSC 4235. However, "[s]uch inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence then the accused must be discharged as there would be an absence of evidence on an essential element" of the offence: Sheardown, at para. 19.

Released: July 19, 2016

Signed: "Justice D. Oleskiw"