CITATION: R. v. D’Souza, 2016 ONSC 2749
COURT FILE NO.: CR-15-169-0000
DATE: 20160425
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Michael B. Carnegie, for the Respondent
Respondent
- and -
David D’Souza
Vanessa V. Christie, for the Applicant
Applicant
HEARD: April 12 and 13, 2016
REASONS FOR DECISION ON DEFENCE PRETRIAL APPLICATIONS:
CONSTITUTIONALITY OF THE HUMAN TRAFFICKING PROVISIONS IN THE CRIMINAL CODE, AND ABUSE OF PROCESS
Conlan J.
Table of Contents
I. Introduction.. 3
The Charges and the History of the Proceedings. 3
The Allegations. 6
II. The Defence Pretrial Applications, the Relevant Legislation and Jurisprudence, and the Positions of the Parties. 7
The Constitutionality Application.. 7
Overview.. 7
The Specifics: Section 7 of the Charter, Vagueness and Overbreadth. 10
Standing and Whether Section 7 of the Charter is Triggered. 10
Vagueness. 11
Overbreadth.. 18
Reasonable Hypotheticals. 34
Binding Authorities?. 35
Section 1 of the Charter 37
The Abuse of Process Application.. 38
Overview.. 38
The Legislation in Question – the Prostitution Provisions. 38
The Specifics: Test for a Stay, Bedford, supra, and the new Regime. 41
III. Analysis. 51
The Constitutionality Application.. 51
The Evidence in the Record on the Issue of Exploitation. 51
Conclusion on the Strength of the Evidence Regarding Exploitation. 71
Vagueness. 74
Overbreadth. 78
What is the Purpose of the Legislation?. 78
Are the Means Enacted to Accomplish the Legislative Objectives Tailored to and Reasonably Necessary to Achieve those Objectives?. 82
Conclusion on the Constitutionality of the Impugned Provisions. 85
The Abuse of Process Application.. 85
IV. Conclusion.. 87
I. Introduction
[1] Are Canada’s human trafficking laws unconstitutional? Is it an abuse of process for this accused to be prosecuted on the prostitution-related offences that he faces?
[2] Those issues confront this Court.
[3] I received a wealth of written materials from counsel and heard oral submissions at Court in Owen Sound over two days, April 12 and 13, 2016.
[4] I have determined that the impugned legislative provisions dealing with human trafficking are not unconstitutional. I have further concluded that a stay of proceedings is not warranted. As such, the Defence Applications are dismissed. These are my reasons for so deciding.
The Charges and the History of the Proceedings
[5] David D’Souza stands charged on a thirteen count Indictment, as follows.
Her Majesty the Queen presents that David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region, and elsewhere in the Province, did unlawfully recruit, transport, harbor or exercise control, direction or influence over the movements of D.P., a person under the age of 18 years, for the purpose of exploiting her person, contrary to section 279.011(1) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014 at the City of Owen Sound, Central West Region and elsewhere in the Province, did unlawfully receive a financial benefit knowing that it results from the commission of an offence under subsection 279.011(1) Criminal Code of Canada; contrary to section 279.02 of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did live partly on the avails of prostitution of D.P., a person under the age of 18 years, contrary to section 212(2) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did procure D.P. to become a prostitute, contrary to section 212(1)(d) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did possess child pornography for the purpose of transmission to others, to wit: a computer graphic picture, contrary to section 163.1(3) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did without lawful excuse, point a firearm, to wit: a long-barreled gun at D.P., contrary to section 87 of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did possess a weapon or an imitation of a weapon, for a purpose dangerous to the public peace, contrary to section 88 of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did by speaking directly knowingly utter a threat to D.P., to cause death to D.P., contrary to section 264.1(1) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did have in his possession, a prohibited weapon, to wit: two push daggers, without being the holder of a licence under which he may possess it, contrary to section 91(2) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did possess a substance included in Schedule I, to wit: Cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did possess a substance included in Schedule II, to wit: Cannabis, contrary to section 4(1) of the Controlled Drugs and Substances Act.
And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did possess a substance included in Schedule I, to wit: Methylenedioxyamphetine, contrary to section 4(1) of the Controlled Drugs and Substances Act.
And further, David Joachim D’Souza, between September 1, 2013 and January 1, 2014, at the City of Owen Sound, Central West Region, did traffic in a substance included in Schedule I, to wit: Cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act.
[6] The Defence applies to strike down some of the human trafficking provisions enacted by Parliament, quashing counts 1 and 2 against the accused, and to stay counts 3 and 4 as constituting an abuse of process. These are the second and third Defence Pretrial Applications that have been heard; I previously dismissed requests by the accused for a change of venue and to sever some of the counts on the Indictment. The accused has elected to be tried in the Superior Court of Justice, by a judge and jury. No trial dates have yet been set.
[7] Mr. D’Souza was arrested in late May 2014. In early June 2014, he was released on bail.
[8] In late July 2014, one of the drug charges against the accused (possession of heroin) was amended (to possession of MDMA).
[9] The preliminary inquiry in the Ontario Court of Justice was conducted in June 2015, with the accused being committed for trial in July 2015.
[10] At the commencement of the preliminary inquiry, two of the charges against Mr. D’Souza (sexual assault and the use of a firearm in the commission of an indictable offence) were withdrawn by the Crown.
The Allegations
[11] Succinctly put, it is alleged that a young lady, D.P. (17 years old at the time), worked as a prostitute for several months. She, a victim of the accused’s coercion, would perform sexual acts in exchange for money. She would meet clients in Toronto and at the residence of the accused in Owen Sound. The arrangements would be made by Mr. D’Souza, who would receive some of the revenues paid to D.P.
[12] It is further alleged that Mr. D’Souza once pointed a firearm at the complainant.
[13] In addition, it is alleged that the accused advertised the young lady’s sexual services on a website, showing provocative photos of her partially undressed.
[14] Upon the arrest of Mr. D’Souza at his residence, the police allegedly seized from that location, under warrant, a rifle and some other weapons, cocaine, MDMA, marihuana, cell phones, and a laptop computer. No charges were laid regarding the long guns as the accused was at all material times the holder of a valid firearms licence.
[15] A search warrant was also executed at the home of the accused’s parents in Scarborough. It is alleged that a handgun and ammunition were seized. Again, no charges were laid as a result of the handgun as it was properly registered to the accused, and he had a valid licence for it.
[16] At the preliminary inquiry, the complainant gave evidence that she was present to observe the accused conduct drug transactions and had been, from time to time, offered cocaine by Mr. D’Souza.
II. The Defence Pretrial Applications, the Relevant Legislation and Jurisprudence, and the Positions of the Parties
The Constitutionality Application
Overview
[17] The Defence applies for a declaration that sections 279.01, 279.011 and 279.02 of the Criminal Code of Canada (“CCC”) are unconstitutional, of no force and effect, and those charges on the Indictment (counts 1 and 2) must therefore be quashed. The Crown opposes the Application.
[18] If this Court concludes that the impugned provisions are unconstitutional but suspends the declaration of invalidity to permit a response from Parliament, the Defence requests that the accused be exempted from that suspension such that counts 1 and 2 are quashed. The Crown opposes that and asks that any declaration of invalidity be suspended for 18 months to allow for a legislative response.
[19] For ease of reference, those sections (279.01, 279.011 and 279.02), all related to human trafficking, are set out below in their entirety.
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 14 years and to a minimum punishment of imprisonment for 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.
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 14 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.
279.02(1) Everyone who received 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 10 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.
[20] Further, because sections 279.01 and 279.011 are enlightened by section 279.04, in terms of the meaning of “exploitation”, set out below is the latter (section 279.04 CCC).
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 (emphasis added).
(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.
[21] I pause here to note, near the outset, the use of the word “cause” (rather than another word like “force”) in subsection 279.04(1) CCC. I return to this issue later in these Reasons. I think that it is important.
[22] The Defence submits that those provisions of the CCC violate section 7 of the Canadian Charter of Rights and Freedoms (“Charter”), which reads as follows.
- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[23] The Crown disagrees that the impugned provisions violate the accused’s section 7 Charter right.
[24] Further, the Defence submits that those provisions of the CCC cannot be saved under section 1 of the Charter, which is set out below.
- The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[25] It is common ground that the onus of proof on section 7 of the Charter is on the Applicant accused, on a balance of probabilities. On section 1 of the Charter, the onus shifts to the Crown.
[26] The crux of the Defence argument is that those provisions of the CCC are vague and overbroad. The Crown disagrees on both points.
The Specifics: Section 7 of the Charter, Vagueness and Overbreadth
[27] The following is a summary of the more specific arguments advanced by the Defence, with references to the Crown’s submissions in response thereto and the relevant law.
Standing and Whether Section 7 of the Charter is Triggered
[28] First, the Defence argues that section 7 of the Charter is triggered because the human trafficking provisions in question attract mandatory minimum sentences (four to years’ imprisonment, minimum, with regard to section 279.01, depending upon the circumstances; five to six years’ imprisonment, minimum, regarding section 279.011, depending upon the circumstances; and two years’ imprisonment, minimum, concerning section 279.02).
[29] Both sides agree that the constitutionality of the mandatory minimum penalties is not an issue before the Court at this stage.
[30] The Crown does not dispute that the accused has standing to bring this Application and that section 7 of the Charter is engaged. I agree.
Vagueness
[31] Second, the Defence argues that the notion of “human trafficking” is uncertain, and these particular provisions of the CCC are void for vagueness. The Crown disagrees on both points. It is a principle of fundamental justice under section 7 of the Charter that laws cannot be too vague – the Crown takes no issue with that general principle.
[32] Both sides agree that a statutory provision is void for vagueness when it fails to reasonably delineate the scope of the law and allow for coherent legal debate as to its application in a specific fact situation. R. v. Levkovic, [2013] 2 S.C.R. (S.C.C.).
[33] In this Court’s view, the law on vagueness is well-settled. It can be traced back to the decision of the Supreme Court of Canada in R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606. Pages 639-640 and 643 of that decision are set out below.
By setting out the boundaries of permissible and non-permissible conduct, these norms give rise to legal debate. They bear substance, and they allow for a discussion as to their actualization. They therefore limit enforcement discretion by introducing boundaries, and they also sufficiently delineate an area of risk to allow for substantive notice to citizens.
Indeed no higher requirement as to certainty can be imposed on law in our modern State. Semantic arguments, based on a perception of language as an unequivocal medium, are unrealistic. Language is not the exact tool some may think it is. It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance. All it can do is enunciate some boundaries, which create an area of risk. But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made. Guidance, not direction, of conduct is a more realistic objective. The ECHR has repeatedly warned against a quest for certainty and adopted this "area of risk" approach in Sunday Times, supra, and especially the case of Silver and others, judgment of 25 March 1983, Series A No. 61, at pp. 33-34, and Malone, supra, at pp. 32-33.
A vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion. Such a provision is not intelligible, to use the terminology of previous decisions of this Court, and therefore it fails to give sufficient indications that could fuel a legal debate. It offers no grasp to the judiciary. This is an exacting standard, going beyond semantics. The term "legal debate" is used here not to express a new standard or one departing from that previously outlined by this Court. It is rather intended to reflect and encompass the same standard and criteria of fair notice and limitation of enforcement discretion viewed in the fuller context of an analysis of the quality and limits of human knowledge and understanding in the operation of the law.
[34] Three years later, the Supreme Court of Canada decided the case in Ontario v. Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 S.C.R. 1031. Paragraph 47 of that decision is instructive.
- In undertaking vagueness analysis, a court must first develop the full interpretive context surrounding an impugned provision. This is because the issue facing a court is whether the provision provides a sufficient basis for distinguishing between permissible and impermissible conduct, or for ascertaining an "area of risk". This does not necessitate an exercise in strict judicial line-drawing because, as noted above, the question to be resolved is whether the law provides sufficient guidance for legal debate as to the scope of prohibited conduct. In determining whether legal debate is possible, a court must first engage in the interpretive process which is inherent to the "mediating role" of the judiciary (Nova Scotia Pharmaceutical Society, supra, at p. 641). Vagueness must not be considered in abstracto, but instead must be assessed within a larger interpretive context developed through an analysis of considerations such as the purpose, subject matter and nature of the impugned provision, societal values, related legislative provisions, and prior judicial interpretations of the provision. Only after exhausting its interpretive role will a court then be in a position to determine whether an impugned provision affords sufficient guidance for legal debate.
[35] In 2013, the Supreme Court of Canada decided the case in R. v. Levkovic, 2013 SCC 25, [2013] 2 S.C.R. 204, which decision refers to the said former two judgments approvingly. Paragraphs 1-3, 32-34 and 47-48 are set out below.
[1] Impermissibly vague laws mock the rule of law and scorn an ancient and well-established principle of fundamental justice: No one may be convicted or punished for an act or omission that is not clearly prohibited by a valid law. That principle is now enshrined in the Canadian Charter of Rights and Freedoms. This has been recognized by the Court since its earliest pronouncements on unconstitutional vagueness in the Charter era.
[2] In Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, the Court cited with approval two decisions of the Supreme Court of the United States[1] holding that “impermissibly vague laws” violate “the first essential of due process of law” (p. 1151), and continued as follows:
The principles expressed in these two citations are not new to our law. In fact they are based on the ancient Latin maxim nullum crimen sine lege, nulla poena sine lege ― that there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive. The rationale underlying this principle is clear. It is essential in a free and democratic society that citizens are able, as far as is possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted with law enforcement is limited by clear and explicit legislative standards . . . . This is especially important in the criminal law, where citizens are potentially liable to a deprivation of liberty if their conduct is in conflict with the law. [p. 1152]
[3] And very recently, speaking for the Court in R. v. Mabior, 2012 SCC 47, [2012] S.C.R. 584, Chief Justice McLachlin reaffirmed the governing principle in these terms:
It is a fundamental requirement of the rule of law that a person should be able to predict whether a particular act constitutes a crime at the time he commits the act. The rule of law requires that laws provide in advance what can and cannot be done . . . . Condemning people for conduct that they could not have reasonably known was criminal is Kafkaesque and anathema to our notions of justice. After-the-fact condemnation violates the concept of liberty in s. 7 of the Canadian Charter of Rights and Freedoms and has no place in the Canadian legal system. [para. 14]
[32] The doctrine against vagueness is founded on two rationales: a law must provide fair notice to citizens and it must limit enforcement discretion. Understood in light of its theoretical foundations, the doctrine against vagueness is a critical component of a society grounded in the rule of law: R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, at pp. 626-27; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 16.
[33] Since long before the Charter, Canadian criminal law has adhered to the principle of certainty: prohibited conduct must be fixed and knowable in advance: M. Manning and P. Sankoff, Manning, Mewett & Sankoff: Criminal Law (4th ed. 2009), at p. 76. As Glanville Williams explained in Criminal Law: The General Part (2nd ed. 1961), at pp. 575-76 (cited in D. Stuart, Canadian Criminal Law: A Treatise (6th ed. 2011), at pp. 20-21):
. . . Nullum crimen sine lege, Nulla poena sine lege ― that there must be no crime or punishment except in accordance with fixed, predetermined law ― this has been regarded by most thinkers as a self-evident principle of justice ever since the French Revolution. The citizen must be able to ascertain beforehand how he stands with regard to the criminal law; otherwise to punish him for breach of that law is purposeless cruelty. . . .
. . . “Law” for this purpose means a body of fixed rules; and it excludes wide discretion even though that discretion be exercised by independent judges. The principle of legality involves rejecting “criminal equity” as a mode of extending the law.
[34] This does not mean that an individual must know with certainty whether a particular course of conduct will ultimately result in a conviction of the crime that prohibits such conduct. What it does mean is that the essential elements of the crime must be ascertainable in advance. If an accused must wait “until a court decides what the contours and parameters of the offence are then the accused is being treated unfairly and contrary to the principles of fundamental justice”: Manning, at pp. 75-76.
[47] A court can conclude that a law is unconstitutionally vague only after exhausting its interpretive function. The court “must first develop the full interpretive context surrounding an impugned provision”: Canadian Pacific, at paras. 47 and 79.
[48] To develop a provision’s “full interpretive context”, this Court has considered: (i) prior judicial interpretations; (ii) the legislative purpose; (iii) the subject matter and nature of the impugned provision; (iv) societal values; and (v) related legislative provisions: Canadian Pacific, at paras. 47 and 87.
[36] Here, according to the Defence, Parliament failed to define many important terms in the human trafficking provisions contained in the CCC. Although it is conceded by the Defence that absolute certainty is impossible, the Defence argues that even the minimum degree of certainty required is lacking. The Crown disagrees.
[37] The Defence argument is founded on the notion that there is a global uncertainty about the term “human trafficking”. What does it really mean? Parliament has failed to provide us any meaningful guidance, asserts the Defence.
[38] The Defence objects to the Crown’s reference to an “international consensus” when it comes to human trafficking (paragraph 61 of the Crown’s factum). There is no such consensus, argues the Defence.
[39] The Crown takes the position that human trafficking is not generally a complex subject. It is, essentially, “pimping plus”, in the words of the Crown. It is pimping together with an element of exploitation.
[40] The Defence filed and spent much time in oral submissions, rightfully so, outlining the literature as it pertains to human trafficking.
[41] For example, at tab 1 of volume 1 of the Applicant’s Book of Authorities, there is a series of articles (spanning hundreds of pages in total) contained in a document published in 2005 by the International Organization for Migration, located in Switzerland: Data and Research on Human Trafficking: A Global Survey, edited by Frank Laczko and Elzbieta Gozdziak. Those articles, submits the Defence, support the notions that the definitions of human smuggling and human trafficking have changed considerably over time; that there is a distinction between voluntary prostitution and forced sex trafficking; that there is no standard definition of exploitation; that there is a great debate between commentators on whether existing definitions of human trafficking are too narrow or too broad; and that there is an even more vociferous debate between commentators on whether it is harmful to conflate the concepts of prostitution and human trafficking.
[42] Ronald Weitzer, for example, a professor of Sociology at George Washington University, harshly criticizes what he calls “radical feminism” and its efforts to equate prostitution with human trafficking. He thinks that it is absurd and argues that there is nothing wrong with recognizing that many prostitutes voluntarily choose that life and are not victims of sex trafficking.
[43] The Defence takes issue with the Crown’s reliance on how some of the relevant terms in the impugned provisions (“recruits”, “transports”, “transfers”, “receives”, “holds”, “conceals” and “harbours”) are fleshed out in other provisions in the CCC (see the chart at paragraph 45 of the Crown’s factum). The Defence emphasizes the rules of statutory interpretation, summarized at paragraphs 67-68 of the decision of the Court of Appeal for Ontario in R. v. A.A., 2015 ONCA 558, [2015] O.J. No. 4016 (although, to be frank, I think that the said references below actually hurt the Defence submission on this point).
[67] The basic rule of statutory interpretation is that the words used are to be read in their entire context in their grammatical and ordinary sense harmoniously with the scheme and object of the Act and the intention of Parliament: Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (LexisNexis, 2008), at p. 1; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; and R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 16. If possible, every part of the provision should be assigned meaning: Sullivan, at p. 210; and Hutchinson, at para. 16.
[68] A second principle of statutory interpretation is the presumption of consistent expression. This principle holds that legislatures use language carefully and consistently so that, unless the contrary appears, the same words have the same meaning within a statute and different words have different meanings: Sullivan, at pp. 214-215; and R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 S.C.R. 1378, at p. 1387.
[44] I pause here to note a well-accepted framework for statutory interpretation. The Court ought to consider the ordinary grammatical sense of the words in question. In addition, the words must be interpreted in their entire context and harmoniously with the overall scheme of the legislation.
[45] The Crown points out that some of the terminology in the impugned provisions has already been interpreted, without much difficulty, in other Court decisions, something which works against the vagueness argument advanced by the Defence. For example, the Crown cites paragraphs 74-77 of the decision of the Quebec Court of Appeal in R. v. Urizar, [2013] Q.J. No. 132.
[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.,[18] 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.
[77] I conclude that the interpretation of section 279.01 Cr. C. proposed by the appellant must be rejected. It appears neither from the wording of the provision nor from the objectives sought by Parliament that the offence of trafficking in persons is limited to cases of forced movement akin to those of a migrant.
Overbreadth
[46] Third, the Defence argues that the impugned provisions in the CCC are overbroad. The Crown disagrees. And that overbreadth is a breach of the principles of fundamental justice (section 7 of the Charter), argues the Defence. Again, although the legal principle is agreed to by the Crown, the Crown disagrees that its application here amounts to any violation of section 7 of the Charter.
[47] Both sides agree that, to determine overbreadth, the Court ought to consider three questions. One, what is the purpose of the legislation? Two, are the means enacted to accomplish the legislative objectives tailored to effect the purpose? Three, is the right to life, liberty or security of the person impaired beyond what is necessary to accomplish the objectives?
[48] It is common ground that, if the answer to question two is “no” and the answer to question three is “yes”, then the law is overbroad and infringes section 7 of the Charter and, generally, would be difficult to save under section 1 of the Charter. R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761 (S.C.C.), and Canada (Attorney General) v. Bedford, 2013 SCC 72.
[49] As I said with regard to the doctrine of vagueness, I am of the view that the law in Canada regarding overbreadth is well-settled. The following authorities are particularly instructive.
[50] One, pages 792-794 of the Heywood, supra decision.
Overbreadth and vagueness are different concepts, but are sometimes related in particular cases. As the Ontario Court of Appeal observed in R. v. Zundel (1987), 1987 CanLII 121 (ON CA), 58 O.R. (2d) 129, at pp. 157‑58, cited with approval by Gonthier J. in R. v. Nova Scotia Pharmaceutical Society, supra, the meaning of a law may be unambiguous and thus the law will not be vague; however, it may still be overly broad. Where a law is vague, it may also be overly broad, to the extent that the ambit of its application is difficult to define. Overbreadth and vagueness are related in that both are the result of a lack of sufficient precision by a legislature in the means used to accomplish an objective. In the case of vagueness, the means are not clearly defined. In the case of overbreadth the means are too sweeping in relation to the objective.
Overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the question: are those means necessary to achieve the State objective? If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.
Reviewing legislation for overbreadth as a principle of fundamental justice is simply an example of the balancing of the State interest against that of the individual. This type of balancing has been approved by this Court: see Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, per Sopinka J., at pp. 592‑95; R. v. Jones, 1986 CanLII 32 (SCC), [1986] 2 S.C.R. 284, per La Forest J., at p. 298; R. v. Lyons, supra, per La Forest J., at pp. 327‑29; R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, at pp. 402‑3; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, at pp. 538‑39; and Cunningham v. Canada, 1993 CanLII 139 (SCC), [1993] 2 S.C.R. 143, at pp. 151‑53. However, where an independent principle of fundamental justice is violated, such as the requirement of mens rea for penal liability, or of the right to natural justice, any balancing of the public interest must take place under s. 1 of the Charter: Re B.C. Motor Vehicle Act, supra, at p. 517; R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, at p. 977.
In analyzing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature. While the courts have a constitutional duty to ensure that legislation conforms with the Charter, legislatures must have the power to make policy choices. A court should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective if he or she had been the legislator. It is true that s. 7 of the Charter has a wide scope. This was stressed by Lamer J. (as he then was) in Re B.C. Motor Vehicles Act, supra, at p. 502. There he observed:
Sections 8 to 14 are illustrative of deprivations of those rights to life, liberty and security of the person in breach of the principles of fundamental justice.
However, before it can be found that an enactment is so broad that it infringes s. 7 of the Charter, it must be clear that the legislation infringes life, liberty or security of the person in a manner that is unnecessarily broad, going beyond what is needed to accomplish the governmental objective.
[51] Two, dealing specifically with overbreadth versus gross disproportionality, paragraphs 37-40 of the decision of the top Court in R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555 (S.C.C.).
[37] In R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761, this Court explained that a law is overbroad if the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective. In determining overbreadth, a measure of deference must be paid to the means selected by the legislator.
[38] The appellants argue that the law is overbroad because it is grossly disproportionate to the objective it seeks to achieve. The appellants conflate overbreadth and gross disproportionality. Heywood suggested that gross disproportionality was a concept subsumed by overbreadth: “The effect of overbreadth is that in some applications the law is arbitrary or disproportionate” (p. 793). However, gross disproportionality seemed to be recognized as a distinct breach of principles of fundamental justice in the marihuana case R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571. Some confusion arises from the fact that Malmo-Levine’s companion case R. v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735, could be read as suggesting that gross disproportionality is simply the standard by which overbreadth is measured. Indeed, this Court wrote in Clay that “[o]verbreadth . . . addresses the potential infringement of fundamental justice where the adverse effect of a legislative measure on the individuals subject to its strictures is grossly disproportionate to the state interest the legislation seeks to protect” (para. 38 (emphasis in original)).
[39] The authorities continue to suggest that overbreadth and gross disproportionality are — at least analytically — distinct. Indeed, Professor Hogg refers to gross disproportionality as the “sister” doctrine of overbreadth (P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), vol. 2, at p. 47-58). Further, in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, this Court considered overbreadth and gross disproportionality under separate headings (paras. 133-35).
[40] For the purposes of this appeal, I need not decide whether overbreadth and gross disproportionality are distinct constitutional doctrines. Certainly, these concepts are interrelated, although they may simply offer different lenses through which to consider a single breach of the principles of fundamental justice. Overbreadth occurs when the means selected by the legislator are broader than necessary to achieve the state objective, and gross disproportionality occurs when state actions or legislative responses to a problem are “so extreme as to be disproportionate to any legitimate government interest”: PHS Community Services Society, at para. 133; see also Malmo-Levine, at para. 143. In order to address the appellants’ s. 7 constitutional challenge, I will (1) examine the scope of the law (2) determine the objective of the law and (3) ask whether the means selected by the law are broader than necessary to achieve the state objective and whether the impact of the law is grossly disproportionate to that objective. Thus, I will examine both overbreadth and gross disproportionality in a single step, without however deciding whether they are distinct constitutional doctrines.
[52] Three, paragraphs 105 and 108-119 of the decision of the Supreme Court of Canada in Bedford, supra.
[105] The overarching lesson that emerges from the case law is that laws run afoul of our basic values when the means by which the state seeks to attain its objective is fundamentally flawed, in the sense of being arbitrary, overbroad, or having effects that are grossly disproportionate to the legislative goal. To deprive citizens of life, liberty, or security of the person by laws that violate these norms is not in accordance with the principles of fundamental justice.
[108] The case law on arbitrariness, overbreadth and gross disproportionality is directed against two different evils. The first evil is the absence of a connection between the infringement of rights and what the law seeks to achieve — the situation where the law’s deprivation of an individual’s life, liberty, or security of the person is not connected to the purpose of the law. The first evil is addressed by the norms against arbitrariness and overbreadth, which target the absence of connection between the law’s purpose and the s. 7 deprivation.
[109] The second evil lies in depriving a person of life, liberty or security of the person in a manner that is grossly disproportionate to the law’s objective. The law’s impact on the s. 7 interest is connected to the purpose, but the impact is so severe that it violates our fundamental norms.
[110] Against this background, it may be useful to elaborate on arbitrariness, overbreadth and gross disproportionality.
[111] Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose. There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person (Stewart, at p. 136). A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests. Thus, in Chaoulli, the law was arbitrary because the prohibition of private health insurance was held to be unrelated to the objective of protecting the public health system.
[112] Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. For instance, the law at issue in Demers required unfit accused to attend repeated review board hearings. The law was only disconnected from its purpose insofar as it applied to permanently unfit accused; for temporarily unfit accused, the effects were related to the purpose.
[113] Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.
[114] It has been suggested that overbreadth is not truly a distinct principle of fundamental justice. The case law has sometimes said that overbreadth straddles both arbitrariness and gross disproportionality. Thus, in Heywood, Cory J. stated: “The effect of overbreadth is that in some applications the law is arbitrary or disproportionate” (p. 793).
[115] And in R. v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735, the companion case to Malmo-Levine, Gonthier and Binnie JJ. explained:
Overbreadth in that respect addresses the potential infringement of fundamental justice where the adverse effect of a legislative measure on the individuals subject to its strictures is grossly disproportionate to the state interest the legislation seeks to protect. Overbreadth in this aspect is, as Cory J. pointed out [in Heywood], related to arbitrariness. [Emphasis deleted; para. 38.]
[116] In part this debate is semantic. The law has not developed by strict labels, but on a case-by-case basis, as courts identified laws that were inherently bad because they violated our basic values.
[117] Moving forward, however, it may be helpful to think of overbreadth as a distinct principle of fundamental justice related to arbitrariness, in that the question for both is whether there is no connection between the effects of a law and its objective. Overbreadth simply allows the court to recognize that the lack of connection arises in a law that goes too far by sweeping conduct into its ambit that bears no relation to its objective.
[118] An ancillary question, which applies to both arbitrariness and overbreadth, concerns how significant the lack of correspondence between the objective of the infringing provision and its effects must be. Questions have arisen as to whether a law is arbitrary or overbroad when its effects are inconsistent with its objective, or whether, more broadly, a law is arbitrary or overbroad whenever its effects are unnecessary for its objective (see, e.g., Chaoulli, at paras. 233-34).
[119] As noted above, the root question is whether the law is inherently bad because there is no connection, in whole or in part, between its effects and its purpose. This standard is not easily met. The evidence may, as in Morgentaler, show that the effect actually undermines the objective and is therefore “inconsistent” with the objective. Or the evidence may, as in Chaoulli, show that there is simply no connection on the facts between the effect and the objective, and the effect is therefore “unnecessary”. Regardless of how the judge describes this lack of connection, the ultimate question remains whether the evidence establishes that the law violates basic norms because there is no connection between its effect and its purpose. This is a matter to be determined on a case-by-case basis, in light of the evidence.
[53] Four, paragraphs 26-27 of the judgment of the Supreme Court of Canada in the recent case of R. v. Appulonappa, 2015 SCC 59.
[26] A law is said to violate our basic values by being overbroad when “the law goes too far and interferes with some conduct that bears no connection to its objective”: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 101. As stated in Bedford, “[o]verbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others”: para. 113; see also Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 85.
[27] The first step in the overbreadth inquiry is to determine the object of the impugned law. The second step is to determine whether the law deprives individuals of life, liberty or security of the person in cases that do not further that object. To the extent the law does this, it deprives people of s. 7 rights in a manner that infringes the principles of fundamental justice.
[54] The Defence submits that the impugned provisions in the CCC are much broader than the international document that led to their enactment: the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 2237 U.N.T.S. 319, Annex II (ratified by Canada 13 May 2002), hereinafter referred to as the “Protocol”.
[55] In support of that submission, the Defence points to Appendix B of the Crown’s factum, which compares three things: (i) section 118 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (Canada’s first response to the Protocol, limited to offenders who traffic persons into Canada), (ii) Article 3(a) of the Protocol, and (iii) sections 279.01, 279.011, 279.02 and 279.04 CCC.
[56] The relevant sections of the CCC are set out above. For ease of reference, below are items (i) and (ii), taken from Appendix B of the Crown’s factum.
Immigration and Refugee Protection Act
Trafficking in Persons
118 (1) No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion.
Definition of “organize”
(2) For the purposes of subsection (1), “organize”, with respect to persons, includes their recruitment or transportation and, after their entry into Canada, the receipt or harbouring of those persons.
The Protocol - Use of Terms - Article 3(a)
Trafficking in persons
shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
[57] In particular, the Defence submits that the term “exploitation” is defined in the CCC in a very broad manner. Subsection 279.04(2) CCC is neither exhaustive nor restrictive, states the Defence.
[58] The Crown counters that subsection 279.04(2) is simply an interpretive aid to the definition of exploitation, such definition being in subsection 279.04(1). Besides, argues the Crown, one look at the definitions of “exploitation” in the Protocol and in the impugned provisions of the CCC suggests that the Parliament of Canada provided more, not less, certainty to the meaning of that term.
[59] The Defence submits that the impugned provisions were designed to combat the enslavement of persons, fight against the global slave trade and reduce the commodification of human beings. The Crown frames the legislative objectives differently. Reproduced below is paragraph 1 of the Crown’s factum.
- The offences of trafficking in persons under the age of 18 and materially benefitting from same (ss. 279.011 and 279.02 of the Criminal Code) were enacted in compliance with Canada’s international law obligations. These provisions, like those that came before it (s. 279.01), were enacted for three key purposes: (1) to prevent human trafficking; (2) to protect the vulnerable victims of trafficking, most of whom are women and children; and (3) to provide the tools necessary to prosecute traffickers and impose appropriate penalties.
[60] In terms of the purpose of Canada’s human trafficking laws, the Defence relies in part on the document at tab 12 of volume 3 of its Book of Authorities – a Legislative Summary of Bill C-49. In particular, the accused points to the second full paragraph on page 2 therein, under the heading “Background”, where there is a discussion of the meaning of “trafficking in persons” (note the repeated use of the word “forced”).
The term “trafficking in persons” essentially refers to the recruitment, transportation and harbouring of a person for the purposes of forced service. Victims are often women and children forced into the sex industry, but also include men, women and children exploited through farm, domestic, or other labour. In some countries, trafficked children may be forced into work as beggars or child soldiers.
[61] Further, the Defence points to page 8 of the same document, the second full paragraph, under the heading “Description and Analysis” (note, again, the repeated use of the word “forced”).
As a result, the new proposed trafficking offence prohibits any situation where a person is moved or concealed and is forced to provide or offer to provide labour, a service, or an organ/tissue. This situation thus covers not only kidnapping or recruitment in order to force a person into prostitution, but also other exploitative labour situations such as those involving domestic or seasonal farm workers. It is important to note that, unlike the trafficking and smuggling offences contained in the Immigration and Refugee Protection Act, the Criminal Code trafficking offence does not require any movement across Canadian borders. The prohibition appears to cover any kind of forced movement, and could include interprovincial, inter-city, and even intra-city movement.
[62] And the Defence relies as well on Hansard from debates in the House of Commons, regarding both Bill C-49 (in 2005) and Bill C-310 (in 2011), particularly those excerpts where various parliamentarians emphasize the serious nature of human trafficking as being the modern form of slavery.
[63] The Crown cautions this Court about placing too much reliance on “cherry-picked” (my term) portions of Hansard, and the Crown observes that the Legislative Summary of Bill C-49 referred to above is not a Ministry of Justice document, was prepared by a researcher on behalf of Parliament’s library services, and is not reliable evidence of Parliament’s intention underlying the impugned provisions.
[64] For its part, in terms of understanding the objectives of Canada’s human trafficking laws, the Crown relies on the decision of the Court of Appeal for Ontario in A.A., supra, specifically paragraphs 73 and 88.
[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.
[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.
[65] On the issue of the objectives of the legislation, the Crown also relies upon paragraph 69 of the decision of the Quebec Court of Appeal in Urizar, supra.
[69] 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.
[66] In addition, the Crown emphasizes the general principle that where, as here, legislation is enacted to support a country’s ratification of an international agreement, there is an interpretive presumption that the legislation conforms with that state’s international obligations. The Crown cites paragraphs 47-48 of the decision of the Supreme Court of Canada in B010 v. Canada (Citizenship and Immigration), [2015] S.C.C. No. 58.
[47] This Court has previously explained that the values and principles of customary and conventional international law form part of the context in which Canadian laws are enacted: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53. This follows from the fact that to interpret a Canadian law in a way that conflicts with Canada’s international obligations risks incursion by the courts in the executive’s conduct of foreign affairs and censure under international law. The contextual significance of international law is all the more clear where the provision to be construed “has been enacted with a view towards implementing international obligations”: National Corn Growers Assn. v. Canada (Import Tribunal), 1990 CanLII 49 (SCC), [1990] 2 S.C.R. 1324, at p. 1371. That is the case with the IRPA, the refugee protection aspects of which serve principally to discharge Canada’s obligations under the 1951 Convention relating to the Status of Refugees, 189 U.N.T.S. 150, and its 1967 Protocol relating to the Status of Refugees, 606 U.N.T.S. 267 (together the “Refugee Convention”), but also, as explained below, Canada’s obligations under the Smuggling Protocol.
[48] In keeping with the international context in which Canadian legislation is enacted, this Court has repeatedly endorsed and applied the interpretive presumption that legislation conforms with the state’s international obligations: see, e.g., Zingre v. The Queen, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392, at pp. 409-10; Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437, at paras. 128-31; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401, at para. 39; United States of America v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3, at para. 25; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, at para. 34; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, at para. 113. This interpretive presumption is not peculiar to Canada. It is a feature of legal interpretation around the world. See generally A. Nollkaemper, National Courts and the International Rule of Law (2011), at c. 7.
[67] “Okay”, says the Defence, but Parliament must implement those international obligations reasonably and in a manner consistent with the Charter.
[68] The Defence argues that the impugned provisions go far beyond the legislative objectives and target situations with little or no threat of victimization (contrary to the whole aim of the legislation) and regardless of choice on the part of the complainant. The Crown disagrees on the first point. On the second point about choice, the Crown takes issue with the notion that a child might freely and validly choose to do what the complainant here did. From the perspective of the Defence, some persons under 18 years of age choose to be involved in prostitution, whether we like it or not. The legislation simply fails to recognize that reality. The Defence objects to the simplicity of the Crown’s statement at paragraph 7 of its factum: “[c]hild prostitution was then, as it is now, an illegal activity”. The Defence argues that it is not quite that simple.
[69] From the perspective of the Crown, we must see this Application through the prism of child prostitution. Consent on the part of the child complainant is irrelevant, argues the Crown. A child cannot validly consent to his or her own exploitation.
[70] The penultimate submission by the Defence is that, for the human trafficking provisions in the CCC to be constitutionally valid, there ought to be an emphasis on forcing someone to do what s/he does not want to do. Otherwise, a finding of guilt could result even if the complainant does not in any way feel exploited.
[71] In support of its penultimate submission, the Defence relies, in part, on the decision of the British Columbia Provincial Court in R. v. Ng, 2006 BCPC 111, at paragraph 8.
[8] Two critical elements distinguish human trafficking from human smuggling. The first is the presence of force, coercion, fraud or deception as part of the process of organizing entry into Canada. In the case of smuggling it is implicit the person being smuggled may be a willing participant in the scheme to gain entry but once entry has been affected there may be no further relationship between the person organizing the entry and the person being smuggled. In contrast, human trafficking, involves the use of force, fraud or deception, to compel a person to participate in the scheme to gain entry. The second critical difference is that in the case of trafficking there is a continuing relationship with the person organizing entry after entry into Canada.
[72] The Crown asks this Court to be careful about placing much reliance on the Ng, supra decision because that case involved a different statute which deals exclusively with persons entering into Canada and, further, even the paragraph cited by the Defence does not require “force” to make out human trafficking – it could be force or something short of force, like coercion.
[73] The Crown submits that the argument that the human trafficking provisions in the CCC should be restricted to “forced” movement has already been rejected by the Courts, for example, in the decision of the Quebec Court of Appeal in Urizar, supra. The Defence counters by submitting that the said decision is of limited utility here because it was not a constitutional challenge case, and the facts were very different. Below are paragraphs 10-17, up to the end of the second sentence (for the basic facts) and 34 (for the main ground of appeal) in the Urizar, supra decision (that main ground of appeal was rejected).
[10] It is a classic case. A young woman is seduced by a young man. Little by little, he skillfully manoeuvres her into dancing nude for his material benefit alone. She is then sucked into a maelstrom from which she eventually escapes, but not without difficulty.
[11] The events began in January of 2009 and ended in August of the same year, when the young woman filed a complaint with the police.
[12] Urizar was 25 years old at the time. He became acquainted with the complainant in a bar. The complainant had just turned 18 years of age. At the beginning of the relationship, Urizar was kind. He showered her with gifts. He told her that he worked for his father's company. He carried a thick wad of cash and drove a Jaguar.
[13] The complainant was living in Longueuil with her parents and was attending adult education classes to obtain her high school diploma. She had a few problems at home and was a witness to her parents’ arguments. The complainant was particularly susceptible to Urizar's gifts (restaurants, clothes, hairdresser, etc.), as she had no income and her parents could not give her these things.
[14] About three weeks after their relationship began, the complainant wondered what she could do to earn as much money as him. Urizar suggested that she dance nude. She was persuaded. Urizar drove her to the residence of his friend Francis, the pimp of a certain Andréanne, with whom she would dance.
[15] Urizar offered her cocaine to help her overcome her shyness and perform well. She accepted. Francis and Urizar drove the two women back to the bar where they were to work.
[16] Then began, for the complainant, a slow decent into a world that was entirely new to her. She was forced by both verbal and physical abuse to dance nude at a frequency that increased gradually. She had to turn all her earnings over to Urizar. If she failed to do so, Urizar would take the money from her by force and beat her.
[17] Gradually, Urizar assumed more and more control over the complainant's actions and movements. He exercised this control through acts of physical violence or intimidating words.
[34] At the hearing, counsel for Urizar focussed primarily on his third ground of appeal. He argues that the convictions on all the counts relating to trafficking in persons concern migrants who are moved or hidden while being obliged to provide forced labour. Without forced movement, there is no crime. I will have the opportunity to examine this issue later; it is the real issue under appeal.
[74] Besides, the Crown argues that the penultimate suggestion by the Defence, referred to above, would require evidence of a subjective belief on the part of the alleged victim of having been forced into prostitution. The subjective feelings of the complainant are not the issue, says the Crown. The result of the accused’s conduct, likewise, is not the issue. The issue is the intention on the part of the accused. By analogy, the Crown points to the decision of the Supreme Court of Canada in Khawaja, supra, which case dealt with the constitutionality of the terrorism offences in the CCC (which are broader than the impugned provisions in this case, argues the Crown). In particular, the Crown relies on paragraph 41 therein.
[41] Section 83.18(1) criminalizes participation in or contributions to the activities of a terrorist group. It requires for conviction that the accused (a) knowingly (b) participate in or contribute to, (c) directly or indirectly, (d) any activity of a terrorist group, (e) for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity. Subsection (2) specifies that, in order to secure a conviction, the Crown does not have to prove that (a) the terrorist group actually facilitated or carried out a terrorist activity, that (b) the accused’s acts actually enhanced the ability of a terrorist group to do so, or that (c) the accused knew the specific nature of any terrorist activity facilitated or carried out by a terrorist group. As the Ontario Court of Appeal found in United States of America v. Nadarajah (No. 1), 2010 ONCA 859, 109 O.R. (3d) 662:
. . . s. 83.18 applies to persons who, by their acts, contribute to or participate in what they know to be activities of what they know to be a terrorist group. In addition, those acts must be done for the specific purpose of enhancing the ability of that terrorist group to facilitate or carry out activity that falls within the definition of terrorist activity. [para. 28]
[75] In Khawaja, supra, the top Court rejected the argument that section 83.18 CCC violates section 7 of the Charter. The section was held to be not overly broad and not grossly disproportionate.
Reasonable Hypotheticals
[76] Fourth, the Defence argues that, in deciding whether a law is consistent with the Charter, the Court may consider reasonable hypotheticals. R. v. Nur, [2015] 1 S.C.R. 733 (S.C.C.). The Crown does not disagree with that proposition (in fact, the Supreme Court of Canada stated that as long ago as 1994, at paragraph 799 of its decision in Heywood, supra, and as recent as last year in its decision in Appulonappa, supra, at paragraph 28). Here, submits the Defence, innocent persons could be caught by the impugned provisions, such as a taxi driver who knowingly drops off a female passenger to meet her “john”. The Crown disputes the reasonableness of those hypotheticals and argues that none of those situations would be caught by the impugned provisions.
[77] The hypotheticals offered by the Defence are set out in paragraph 68 of its factum, reproduced below.
- Much like the provisions analyzed in Bedford and in Appulonappa, the sections capture a wide spectrum of persons with no intention to victimize anyone. It is not difficult to imagine situations where this law could adversely impact someone who has done nothing wrong other than knowing a person is a prostitute. The relatives or partners of sex workers would be particularly vulnerable to unfair targeting. The following reasonable hypotheticals could be captured by the section:
An Uber driver picks up a passenger, who is scantily clad. The passenger has a discussion on her cell phone about being dropped off to a “john”. The Uber driver drops off the passenger at the location where she is to meet the “john”
A landlord, who rents property to a person they know to be a prostitute, and who they know will be participating in prostitution in their location.
A hotel concierge providing the key to a “john” to enter the hotel room after receiving instructions from a person he suspects to be a prostitute.
A virtual secretarial service arranging for transportation for a suspected escort.
[78] The Crown argues that the Defence hypotheticals are lacking the necessary element of exploitation. Where is the required high degree of mens rea on the part of the offender, asks the Crown. The Defence counters by saying that perhaps the reasonable observer equates prostitution with exploitation, and thus, nothing further is needed.
Binding Authorities?
[79] Fifth, the Defence argues that this Court is not bound by the only other Court decision to date which has dealt specifically, in the context of a Charter challenge, with the constitutionality of the human trafficking provisions in the CCC – R. v. Beckford, [2013] O.J. No. 371 (S.C.J. – Miller J.). In that case, the Court upheld section 279.011 of the CCC, rejecting the Defence arguments that it is vague or overbroad or otherwise violates section 7 of the Charter. The case is distinguishable, the Defence submits, in that it focused on the mens rea, while the focus here is on the actus reus.
[80] The Defence argues that in the Beckford, supra decision, which prosecution, I am told, ended in a mistrial, the Defence position was framed differently than here. In support of that submission, Defence counsel took this Court to the following passages from Justice Miller’s Reasons (paragraphs 20, 30 and 34).
He takes the position that it can reasonably be inferred that Parliament’s intention in drafting the actus reus of the offence so broadly was to capture any individual who had any involvement with trafficking of a person at any stage of their transportation or movement, no matter how slight their respective role may be. Further, while this expansive definition may not make the offence overly broad, per se, the uncertainty and vagueness in which Parliament has defined exploitation generally, and as it relates to the mens rea of human trafficking specifically, renders the collective scope of the provisions overly broad and impermissibly vague.
Mr. Stone takes the position that the greatest ill of these provisions is that they do not require that any exploitation actually occur. He further argues that the description of the conduct constituting the offence, specifically that which “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,” is so imprecise that it fails to permit anyone to predict whether their conduct would be criminal. It is his position that the concept of exploitation relies on an appreciation of another person’s reasonable belief. He contends that this can never be defined with any certainty, and it remains wholly speculative, uncertain and ultimately impermissibly vague.
It is Mr. Stone’s position that s. 279.01 and s.279.011 are worded such that they incorporate a diminished mens rea component and capture a breadth of conduct that lacks the moral blameworthiness required by the penalties mandated upon conviction and the stigma of being a human trafficker. He posits that it is not necessary for the Crown to prove the “purpose” component of the offence in order to obtain the conviction. Rather, it is sufficient if the acts are done only to facilitate the exploitation of a person.
[81] In the end, Miller J. held that the term “in circumstances of exploitation” was sufficiently precise. The Court concluded that there was a relatively high degree of mens rea required for the offence in section 279.011 CCC.
[82] Both sides agree that these impugned provisions carry with them a high degree of moral blameworthiness on the part of the offender.
[83] The Crown agrees that this Court is not bound by the decision in Beckford, supra, however, the Crown doubts that the said decision is distinguishable from our case, at least to the degree suggested by the Defence. In the end, I agree with the conclusions reached by Justice Miller.
[84] The Defence argues that, under section 1 of the Charter, very rarely (maybe never) will a law that violates section 7 be saved. Carter v. Canada (Attorney General), [2015] 1 S.C.R. (S.C.C.). The Crown does not disagree with that assertion.
[85] Not disputed by the Crown, as submitted by the Defence, the state must show that (i) the law is pressing and substantial in its objective, and (ii) the means chosen are proportional to that objective. There are three ingredients to proportionality: (i) the means must be rationally connected to the objective, (ii) the law must minimally impair the right in question, and (iii) there must be proportionality between the deleterious and salutary effects of the law. It is necessary to assess the third criterion only if the law is found to be minimally impairing. R. v. Oakes, [1986] 1 S.C.R. (S.C.C.), and Carter, supra.
[86] The Crown concedes that, if a violation of section 7 of the Charter is found in this case, justification cannot be established under section 1.
The Abuse of Process Application
Overview
[87] This Application focusses on the accused’s right to a fair trial and his right to make full answer and defence.
[88] Pursuant to subsection 24(1) of the Charter, the Defence applies for a stay of proceedings related to counts 3 and 4 on the Indictment – the prostitution charges under subsections 212(2) and 212(1)(d) of the CCC. The Crown opposes the Application.
[89] There is no constitutional challenge before this Court with regard to the prostitution provisions.
[90] For ease of reference, subsection 24(1) of the Charter is set out below.
- (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
The Legislation in Question – the Prostitution Provisions
[91] At paragraph 17 of its factum, the Defence nicely summarizes the legislation at the time of the alleged offences facing this accused. That paragraph is set out below.
- At the time of these alleged offences, section 212 of the Criminal Code read as follows :
Procuring
- (1) Every one who
(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in a common bawdy-house,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, or
(j) lives wholly or in part on the avails of prostitution of another person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Living on the avails of prostitution of person under eighteen
(2) Despite paragraph (1)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of two years.
Aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years
(2.1) Notwithstanding paragraph (1)(j) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who
(a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and
(b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.
Presumption
(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1).
Offence — prostitution of person under eighteen
(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of six months.
The Specifics: Test for a Stay, Bedford, supra, and the new Regime
[92] The argument by the Defence is that proceeding to trial on those two counts on the Indictment is an abuse of process and contrary to both section 7 of the Charter and the common law. The Crown wholly disagrees.
[93] It is common ground that the onus of proof is on the Applicant accused, on a balance of probabilities.
[94] The Defence argues that this is one of those clearest of cases to warrant a stay of proceedings because section 212 CCC was repealed in November 2014 and replaced with sections 286.1 to 286.3. The amendments resulted from Bill C-36, enacted in response to the decision of the Supreme Court of Canada in Bedford, supra. Although Bill C-36 was enacted after this accused’s arrest, it was spawned by the top Court’s decision in Bedford, supra, which judgment was rendered before his arrest.
[95] The Crown disagrees that a stay of proceedings is warranted. Not even close, argues the Crown.
[96] The current sections 286.1 to 286.3 of the CCC read as follows.
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 of,
(i) in the case where the offence is committed in a public place, or in any place open to public view, that is or is next to a park or the grounds of a school or religious institution or that is or is next to any other place where persons under the age of 18 can reasonably be expected to be present,
(A) for a first offence, a fine of $2,000, and
(B) for each subsequent offence, a fine of $4,000, or
(ii) in any other case,
(A) for a first offence, a fine of $1,000, and
(B) for each subsequent offence, a fine of $2,000; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term of not more than 18 months and a minimum punishment of,
(i) in the case referred to in subparagraph (a)(i),
(A) for a first offence, a fine of $1,000, and
(B) for each subsequent offence, a fine of $2,000, or
(ii) in any other case,
(A) for a first offence, a fine of $500, and
(B) for each subsequent offence, a fine of $1,000.
(2) 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 under the age of 18 years is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of
(a) for a first offence, six months; and
(b) for each subsequent offence, one year.
(3) In determining, for the purpose of subsection (2), whether a convicted person has committed a subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:
(a) an offence under that subsection; or
(b) an offence under subsection 212(4) of this Act, as it read from time to time before the day on which this subsection comes into force.
(4) In determining, for the purposes of this section, whether a convicted person has committed a subsequent offence, the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences, whether any offence occurred before or after any conviction or whether offences were prosecuted by indictment or by way of summary conviction proceedings.
(5) For the purposes of this section, place and public place have the same meaning as in subsection 197(1).
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.
(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 286.1(2), 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.
(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.
(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.
(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.
(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.
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.
(2) Everyone who procures a person under the age of 18 years to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(2), recruits, holds, conceals or harbours a person under the age of 18 who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of five years.
[97] The current subsection 286.2(4), it is argued by the Defence, allows for exceptions that could apply to this accused – exceptions for dependants and legitimate, non-violent relationships (even with minors). To force the accused to trial and deny him the ability to rely upon those exceptions would be fundamentally unfair, states the Defence. The Crown doubts that any of those exceptions, even if statutorily available to this accused, could reasonably apply to him, on these facts.
[98] Both sides agree that the Defence argument for a stay of proceedings depends upon a finding by this Court that there is an air of reality to the suggestion that one or more of the exceptions could apply to this accused. The Defence submits that such an air of reality does exist; the Crown disagrees and relies on the restrictions contained in the current subsection 286.2(5).
[99] The Defence acknowledges that Bedford, supra did not deal with these specific charges facing this accused but rather subsection 212(1)(j) CCC, however, the Defence submits that the Supreme Court of Canada’s analysis can be applied to this case. After all, the Defence points out that the wording of section 212(2), the offence facing this accused, is identical to the wording of the charge that was before the Court in Bedford, supra, except for the age of the alleged victim.
[100] Paragraphs 66-67 (the finding of unconstitutionality based on a breach of section 7 of the Charter, security of the person) and 142 (overbreadth) of the Bedford, supra decision are important.
[66] Section 212(1)(j) criminalizes living on the avails of prostitution of another person, wholly or in part. While targeting parasitic relationships (R. v. Downey, 1992 CanLII 109 (SCC), [1992] 2 S.C.R. 10), it has a broad reach. As interpreted by the courts, it makes it a crime for anyone to supply a service to a prostitute, because she is a prostitute (R. v. Grilo (1991), 1991 CanLII 7241 (ON CA), 2 O.R. (3d) 514 (C.A.); R. v. Barrow (2001), 2001 CanLII 8550 (ON CA), 54 O.R. (3d) 417 (C.A.)). In effect, it prevents a prostitute from hiring bodyguards, drivers and receptionists. The application judge found that by denying prostitutes access to these security-enhancing safeguards, the law prevented them from taking steps to reduce the risks they face and negatively impacted their security of the person (para. 361). As such, she found that the law engages s. 7 of the Charter.
[67] The evidence amply supports the judge’s conclusion. Hiring drivers, receptionists, and bodyguards, could increase prostitutes’ safety (application decision, at para. 421), but the law prevents them from doing so. Accordingly, I conclude that s. 212(1)(j) negatively impacts security of the person and engages s. 7.
[142] The question here is whether the law nevertheless goes too far and thus deprives the applicants of their security of the person in a manner unconnected to the law’s objective. The law 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. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is therefore overbroad.
[101] To support its argument that the Bedford, supra analysis ought to be applied to the charges against this accused, the Defence points to the fact that, post-Bedford, supra, Parliament indeed amended the provisions dealing with child prostitution (even though that was not directly before the Supreme Court). Tab 2 of the Defence authorities, at page 17, contains a handy chart that explains what Bill C-36 did to change the laws that existed when Bedford, supra was decided. That chart is reproduced below.
[102] Both sides agree that the test for a stay of proceedings has three ingredients: (i) prejudice to the accused person’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of a trial, (ii) no alternative remedy capable of redressing the prejudice, and (iii) where it remains uncertain whether to grant a stay after assessing the first two issues, a balancing of the interests in favour of a stay against society’s interest in having a decision on the merits of the case. R. v. Piccirilli (2014), 2014 SCC 16, 308 C.C.C. (3d) 445 (S.C.C.).
[103] The Defence concedes the hurdle of subsection 43(d) of Canada’s Interpretation Act, R.S.C. 1985, c.I-21, which provides as follows (and which the Crown argues is a complete answer to the Application).
- Where an enactment is repealed in whole or in part, the repeal does not
(d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed
[104] Nevertheless, the Defence submits that this Court ought not to ignore Bedford, supra and should grant the stay requested. The Crown disagrees.
[105] If this Court finds merit in the Defence arguments, then the Crown submits that only count 3 (living off the avails of prostitution) should be stayed. Count 4 (procuring) could not possibly be stayed because none of the exceptions contained in the current subsection 286.2(4) could apply to this accused in light of paragraph (d) of the current subsection 286.2(5). Subsection 286.2(5)(d) states that “[s]ubsection (4) [the exceptions] does not apply to a person who commits an offence under subsection (1) or (2) if that person…engaged in conduct, in relation to any person, that would constitute an offence under section 286.3 [procuring]”.
[106] Finally, the Crown and the Defence disagree on the significance of the jurisprudence dealing with the retrospectivity of criminal legislation. The Defence submits that the door is open to finding that legislation, like the current subsection 286.2(4) CCC, might apply retrospectively because such an application would go to the benefit (rather than the detriment) of this accused. The Defence cites the first full paragraph on page 471 of the Supreme Court of Canada’s decision in Brosseau v. Alberta Securities Commission (1989), 1989 CanLII 121 (SCC), 57 D.L.R. (4th) 458.
The so-called presumption against retrospectivity applies only to prejudicial statutes. It does not apply to those which confer a benefit. As Elmer Driedger, Construction of Statutes (2nd ed. 1983), explains at p. 198:
. . . there are three kinds of statutes that can properly be said to be retrospective, but there is only one that attracts the presumption. First, there are the statutes that attach benevolent consequences to a prior event; they do not attract the presumption. Second, there are those that attach prejudicial consequences to a prior event; they attract the presumption. Third, there are those that impose a penalty on a person who is described by reference to a prior event, but the penalty is not intended as further punishment for the event; these do not attract the presumption.
[107] The Crown counters with paragraphs 51-56 of the decision of the Court of Appeal for Ontario in R. v. Bengy (2015), 2015 ONCA 397, 325 C.C.C. (3d) 22, which decision appears to question the precedential value of Brosseau, supra.
[51] The appellants argue that the presumption against retrospectivity does not apply when an amendment confers a benefit to accused persons. They cite the Supreme Court’s decision in Brosseau v. Alberta Securities Commission, 1989 CanLII 121 (SCC), [1989] 1 S.C.R. 301, in which L'Heureux-Dubé J. stated, at p. 318, “The so-called presumption against retrospectivity applies only to prejudicial statutes. It does not apply to those which confer a benefit.”
[52] In my view, the appellant’s reliance on this statement is misplaced. First, the statement was obiter, as the statute in question in that case was categorized neither as beneficial nor as prejudicial, but as falling within a third category of statutes that impose a penalty in order to protect the public, rather than to impose further punishment. It was this third category of statutory provisions that was held to be exempt from the presumption against retrospectivity in Brosseau. The self-defence provisions cannot be said to fall into this category.
[53] Further, L’Heureux-Dubé J. explicitly distinguished between the aspect of retrospectivity the court was addressing in Brosseau and the aspect at issue in this case, at p. 317:
The basic rule of statutory interpretation, that laws should not be construed so as to have retrospective effect, was reiterated in the recent decision of this Court in Angus v. Sun Alliance Insurance Co., 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256. That case, however, dealt with the question of the retrospective effect of procedural versus substantive provisions. The present case presents a different facet of the problem of retrospectivity.
[54] Based on this distinction, the present case is like Angus and, therefore, cannot be decided simply on the basis of Brosseau.
[55] Second, no other Supreme Court decision has distinguished between beneficial and prejudicial statutes based on the comments in Brosseau or otherwise. Not only is there no reference in Dineley that the presumption against retrospectivity is restricted to prejudicial statutes, as will be discussed below, the focus on the effect of a statute to determine its retrospectivity is contrary to the analysis mandated by the Supreme Court in Dineley.
[56] In any event, the Citizen’s Arrest and Self-defence Act changes the law of self-defence in a manner that is prejudicial to some accused and beneficial to others, depending on their particular circumstances. Therefore, a distinction between prejudicial and beneficial statutes is of no assistance in conducting an analysis of the retrospectivity of this statute.
III. Analysis
The Constitutionality Application
The Evidence in the Record on the Issue of Exploitation
[108] The Crown and the Defence sharply disagree on the strength of the evidence in the record to support a conclusion that this accused exploited this complainant.
[109] The Crown summarizes the facts at paragraphs 4 to 8 of its factum as follows.
A factual context is vital to any constitutional challenge. In that vein, a fulsome accounting of the circumstance is most instructive. While the Respondent’s evident focus upon the complainant’s subjective evidence with respect to whether she was ‘forced’ into prostitution by the Applicant is a relevant consideration, it does not portray the full story. Exploitation takes many forms as Parliament acknowledged when crafting and considering the human trafficking provisions. An objective assessment of the circumstances imposed upon the complainant by the Applicant is a more telling prism to assess the issue. Morneau J. was afforded a fulsome picture from which to draw available conclusions at the preliminary inquiry. Her reasons for committal are instructive and go to the heart of the issues before this Court; particularly, the issues that are inherent when the complainant before this Court is a child.
Morneau J. reviewed the evidence heard at the preliminary inquiry and, by summary here, made germane observations for the application before this Court:
a) the complainant was known to be a long term ward of the CAS and, at the time of her dealings with the Applicant, was unhappy with her foster care living arrangements and her mother’s home was not an option;
b) the complainant began communicating with the Applicant, eight years her senior and at his request, using internet social networking at age 15 and ultimately began spending a considerable period of time at his residence when she was 16 years old;
c) the Applicant shared his home with an 18 year old prostitute, J., who worked both in and outside the residence. The complainant befriended J. the first time she attended the Applicant’s residence and there were open discussions with the Applicant about how he and J. “made a living” through prostitution;
d) the complainant understood that J. would service clients in the home for which arrangements were made through the Applicant. On occasion the complainant was present in the home with the Applicant while J. serviced clients and was advised by the Applicant how prostitution worked and how much money J. was making;
e) at the age of 16 years, the complainant ultimately became involved in prostitution. The Applicant and J. talked about the complainant joining J. in “duos” with clients. The Applicant, knowing the complainant’s age, made all the necessary arrangements to facilitate the complainant’s prostitution, including: advertising her services on the internet with sexual suggestive photographs arranged for and posted; setting up appointments; instructing her on what types of sexual services to offer, how much to charge for those services, communicating with the clients and arranging where the services would be rendered;
f) the Applicant arranged the locations for the services, be it at his home or, often, in hotel rooms in the Toronto area on the weekends. The complainant had never been to the Toronto area before and did not have a driver’s licence. The Applicant would drive both the complainant and J. to the hotels, make the appointments with clients, determine the cost of the services and collect the money from the complainant. He would deduct from her earnings, “sometimes up to 20 calls per night,” mileage and his expenses and would then take a 20-30% cut of the profits. The complainant would pay for the hotel room in cash;
g) on her first weekend of work in Toronto the complainant’ last client hurt her. She advised the Applicant and realized that he had no plan for her if she needed help;
h) while she was involved in the prostitution activities she lived with the Applicant at his residence rent free. They did not have sexual relations although he had requested sexual activity and would get mad at her when she refused;
i) the Applicant held onto the complainant’s money;
j) the Applicant advised the complainant about two other women who had worked for him and advised that he wished he could kill one of those women exhibiting a lot of anger towards her. He talked about using ricin to kill her as it would not be discoverable in an autopsy. The complainant knew that the Applicant owed a handgun and two long guns which he kept in the house – he usually kept the long guns in their open cases in his room. He also had a machete behind or under the couch on the main floor. The Applicant talked about using a silencer on a handgun which would prevent any sound when firing the gun. This caused the complainant fear;
k) on one occasion the Applicant, drunk at the time, woke up the complainant while holding one of the long guns to the back of her head. The complainant left the house but returned after they argued. She advises that she was “kinda scared to leave.” She was concerned that if she left the Applicant would tell people about her prostitution. She also recalled that the Applicant had earlier said that if she ever told someone she was prostituting at her age he could get into trouble. He would kill her if she told anyone;
l) the complainant was afraid of the Applicant. She advised that he pointed the long gun many times toward her and said that he had done the same to others;
m) the complainant left the residence for a period of weeks during which time the Applicant continually texted her and called her names. The Applicant would not leave her alone. She also had an unpaid debt to J. she wanted to settle. She returned to the residence and continued her prostitution activities with the Applicant continuing to make all the arrangements; and
n) the complainant ultimately reported her circumstances to police after finishing a weekend of work in Toronto. She was 17 years old when she made the complaint some 15 months after beginning her prostitution activities with the Applicant.
Morneau J. concluded that there was evidence that the Applicant recruited the complainant into prostitution fully aware of her age. He conceived of the idea to introduce the topic to the complainant with the assistance of J. He transported the complainant for her work purposes and “set the terms and conditions of the prostitution. The Court considered the definition of exploitation as outlined in s. 279.04 and as has been interpreted by courts. She found the relationship between the Applicant and the complainant exploitative and summarized the factors leading to this conclusion in paragraphs 42 – 52 of her Reasons.
While the Applicant emphasizes evidence which speaks to the willingness of the complainant to engage in prostitution, it is divorced from the contextual circumstances and totality of evidence pointing to the Applicant’s undue influence. Regardless, the complainant was a child at all the material times that she engaged in prostitution while in the presence of the Applicant. Child prostitution was then, as it is now, an illegal activity. This has never been challenged as part of the human trafficking regime or the past or present Canadian prostitution regimes. Simply put, there is no legal ‘choice’ in respect to child prostitution.
Here, the Applicant is charged with child human trafficking offences (amongst other matters), not the more ‘choice’ friendly context of adult human trafficking, which, itself has survived scrutiny to date due to the regimes emphasis on exploitation as its purpose.
[110] The Defence, on the other hand, submits that the evidence shows that this complainant engaged in prosecution because she was curious and wanted to make money. The Defence took this Court to numerous passages in the evidentiary record, including the following.
[111] First, the transcript of the complainant’s interview with the police on May 29, 2014 – page 13, line 12 to page 22, line 2.
CONSTABLE DANIELS: No problems. Um, I want, I guess what I want to do is start with how you became involved with this, ah, with being involved in prostitution? Can you remember back, when we originally talked, just very briefly, you said you were involved for somewhere in the ballpark of, of nine months?
D.P.: Yeah. Like, it’s hard to remember all of it, but, um, like, the guy, Dave…
CONSTABLE DANIELS: Mm hmm.
D.P.: …who’s pi, pimping the girls out, um, I met him about, I think, three years ago.
CONSTABLE DANIELS: Okay.
D.P.: And I didn’t talk to him for like a year or two.
CONSTABLE DANIELS: Yeah.
D.P.: And then he found me on Facebook, around the nine months ago.
CONSTABLE DANIELS: Okay.
D.P.: And then asked if I want to hang out and I said: sure. And then I went to his house and then G. was there, which is one of the girls she was working with.
CONSTABLE DANIELS: Okay.
D.P.: And then they were just always working when I was there and then it kinda just, like, I, s, ended up being involved with it, like….
CONSTABLE DANIELS: Okay. Let’s take you back to saying the nine months ago, your, so you’re referring to Dave D’Souza, is that correct?
D.P.: Yes.
CONSTABLE DANIELS: Okay. Let’s take you back nine months ago, so, I want you to really think back, and how, and be specific ‘cause I need to sorta h, know how this progression worked, in, so, you started hanging out at his place, is that correct?
D.P.: Yeah.
CONSTABLE DANIELS: Okay. What happened wh, how did he eventually end up talking you into, into….
D.P.: Pretty much, like, whenever I was around…
CONSTABLE DANIELS: Mmm.
D.P.: …his house, G. was working there.
CONSTABLE DANIELS: Mm hmm.
D.P.: So it was kinda like, I was seeing what was going on, and then, they were always, like, telling me, kinda like, oh, you make, like, this much and everything.
CONSTABLE DANIELS: Mm hmm.
D.P.: And then, I remember the first time I ever did it, it wasn’t ‘til I went to Toronto with them…
CONSTABLE DANIELS: Okay.
D.P.: …um, say I went to Toronto with them, and then I think it was like a couple days that we were there.
CONSTABLE DANIELS: Mm hmm.
D.P.: It was like the first time that I decided to try it.
CONSTABLE DANIELS: Okay. So, tell me about sorta the discussions that led up to you going to Toronto, a, you said…
D.P.: Um.
CONSTABLE DANIELS: …di, I, I, I didn’t hear the name that you, you’re referring to, a Jen?
D.P.: G.
CONSTABLE DANIELS: Jim?
D.P.: G.
CONSTABLE DANIELS: G. Sorry, my apologies.
D.P.: It’s okay.
CONSTABLE DANIELS: It’s just a different name.
D.P.: Yeah.
CONSTABLE DANIELS: G. Okay. So you have discussions with G., and what does G. tell you about, about….
D.P.: She pretty much just tells me, like, that, like, how much they were making, kinda like: what are you doing? Like, I would ask her questions, like: are you not scared, and stuff, and, she was pretty much just, like, once I, I kinda said teaching me about it, but, like, she wasn’t, like, she was kinda just explaining everything, and….
CONSTABLE DANIELS: Okay. Do you remember what she explained when you had this, started having this c, interest or conversation with her?
D.P.: She, pretty much just, like, would tell me, like, what would happen and stuff, like…
CONSTABLE DANIELS: Okay.
D.P: Yeah.
CONSTABLE DANIELS: Do you remember any specific conversations?
D.P.: Not really.
CONSTABLE DANIELS: Okay. So, how long was it after you started hanging out there, and, and G. is doing business, is she, sorry, she was doing business, she was turning tricks there?
D.P.: Yeah.
CONSTABLE DANIELS: Okay. So she was doing, doing business and that was at Dave’s place?
D.P.: Yes.
CONSTABLE DANIELS: Do you rem, and that’s Dave’s place in Owen Sound?
D.P.: Yeah.
CONSTABLE DANIELS: Do you remember the, the address for that place?
D.P.: Um, it’s 2 Lamson.
CONSTABLE DANIELS: 2 Lamson Crescent?
D.P.: Yeah.
CONSTABLE DANIELS: Okay. So how long would you be in, that you were hanging out there, ah, with, with them bef, ah, before, he sorta gets you to go to Toronto?
D.P.: I can’t remember exactly.
CONSTABLE DANIELS: I, and, remember…
D.P.: But…
CONSTABLE DANIELS: …the last time we talked, I don’t remember it exactly but just sort of an estimate, I don’t remem….
D.P.: I’d say it would be within, like, the first month or two.
CONSTABLE DANIELS: Okay.
D.P.: I think.
CONSTABLE DANIELS: Do you remember how Dave approached that with you, like, how he…
D.P.: Um…
CONSTABLE DANIELS: he approached you and said, you know, I want you to, how did that go?
D.P.: I can’t really remember, like, I think it was just, like, I was, like, around it all the time…
CONSTABLE DANIELS: Mm hmm.
D.P.: …that, like, they asked if I wanted to try it and then, I was kinda, like, I guess I’ll try it and then, say, I can’t remember, like, exactly like, what he said or like what anyone said.
CONSTABLE DANIELS: Okay. What did, when he, he sort of, when you were arranging the deal with Toronto, w, w, go to Toronto, what did he promise you? Did he promise you anything, what was, what was sort of the arrangement?
D.P: Um, like, what do you mean by that?
CONSTABLE DANIELS: What did you discuss money, did you discuss how many…
D.P.: He…
CONSTABLE DANIELS: …men you would, ah, you would service?
D.P.: He didn’t really do any of that. All he said, was, ah, he was like, he usually goes to like a restaurant or a bar or something.
CONSTABLE DANIELS: Mm hmm.
D.P.: And that we would be in the hotel room.
CONSTABLE DANIELS: Mm hmm.
D.P.: And he’d text them as if we’re, as if he’s like the girls.
CONSTABLE DANIELS: Mm hmm.
D.P.: And then, he, like, sets up, like, the money and everything like that, then they bring it in and then, yeah.
[112] Second, from the same interview transcript, page 55, line 11 to page 56, line 24 (the Defence argues that the said passage supports the notion that the complainant controlled her own involvement in the prostitution).
CONSTABLE DANIELS: Okay. Were you, was most of the contact you had with clients, okay, was there ever any time that clients wanted something that was outside the normal realm of sex, like, normal sex?
D.P.: Um, I don’t know. I don’t think so.
CONSTABLE DANIELS: Okay. Did, and, and, I guess what I’m trying to get it, does it, did you ever have any clients that, you know, that there were arrangements made to say perform anal sex?
D.P.: Ah, um, we always told them no.
CONSTABLE DANIELS: Okay.
D.P.: Some of the people would ask, like, they text, they think they’re texting us and they would say can we do that, but, we would always say no.
CONSTABLE DANIELS: So Dave controlled that?
D.P.: Yeah, like, he would, we pretty much told him, like, that we didn’t wanna do that.
CONSTABLE DANIELS: Okay.
D.P.: There was a couple times where he tried to convince us, like, say, come on, like they’re willing to pay, like, five hundred dollars or something…
CONSTABLE DANIELS: Okay.
D.P.: …but like, ah, we usually would just say no.
[113] Third, from the same interview transcript, page 98, line 20 to page 100, line 14 (the complainant could walk away from the enterprise without much difficulty, if she wanted to, says the Defence).
CONSTABLE DANIELS: When Dave, let me ask you this, then, if you went up to Dave’s place today and said, I’m out of this, would you be able to walk away?
D.P.: Mmm, he’d probably fight it with me.
CONSTABLE DANIELS: And what do you mean, fight with you?
D.P.: Um, he would, well, I remember the last time I walked away, he was, like, text me for days, like, and he would, like, call me names and, like, tell me I’m stupid and he just, like, get really pissed off and…
CONSTABLE DANIELS: Okay. Did he ever threaten you at that point, the last time you walked away, did he ever threaten you?
D.P.: Um, I don’t know, because I was with G. when I left because G.’s going back down to Toronto and then I went down there with him.
CONSTABLE DANIELS: Mm hmm.
D.P.: I mean with her.
CONSTABLE DANIELS: Right.
D.P.: Um, the last time, no, he didn’t, no.
CONSTABLE DANIELS: Last time.
D.P.: No.
CONSTABLE DANIELS: Okay.
D.P.: It’s mainly if I were to tell somebody that (…inaudible…), I don’t think he would be too concerned if I walked away, but if I like walked away and was like oh, I’m gonna go tell the cops or something…
CONSTABLE DANIELS: Mm hmm.
D.P.: …he would probably do something then, but....
CONSTABLE DANIELS: Yeah.
D.P.: Yeah. He’s just mainly worried about like himself getting caught.
[114] Fourth, page 116 of the same interview transcript, where the complainant acknowledged that she could refuse clients.
[115] Fifth, page 150 of the same interview transcript, where the complainant stated that she took her own “selfies” (photos of herself in a bra and underwear).
[116] I pause here to note that the Defence, understandably, did not emphasize what the complainant said to the police officer at page 182 of the same interview transcript: that the accused had pointed a gun at her three to four times while she worked for him as a prostitute.
[117] Sixth, from the transcript of the complainant’s testimony at the preliminary inquiry, page 97, lines 2-28 (she was okay with getting involved with prostitution from the very outset, says the Defence).
Q. Okay. So when I say the next day, that next morning, sometime that next after, you stayed the night…
A. Yes.
Q. … and into the next day. There was some discussion with G., or you just knew that she was doing calls?
A. Well she was, they were setting up where she was going to do calls, and then because she was going to be having guys over at the house, they had to explain to me like what was going to be happening.
Q. So who’s explaining to you what’s going to happen?
A. Both of them.
Q. Well what is Mr. D’Souza telling you specifically about what’s happening?
A. I don’t remember his exact words but pretty much they just explained to me how like a guy was going to come and then Dave and I would hide. And then G. was going to go upstairs and they explained to me how she was an escort.
Q. And how did you feel about hearing all that?
A. At the time, I don’t know, it didn’t really bug me.
Q. Were you okay with staying there, I mean you’re saying that you’re being told that you’re either going to hide in the basement or, you know, hang around the corner in the living room. Were you cool with that idea?
A. Yeah, like I was fine with it, but.
[118] Seventh, from the same preliminary inquiry transcript, page 99, line 2 to page 100, line 20 (the complainant got involved with prostitution willingly because she was curious and wanted to make money, submits the Defence).
Q. And was it that time where the conversations start to happen with you about getting you involved, or is it sometime later?
A. It wasn’t like while I was with Dave. Pretty much the whole time she was doing calls I was kind of just like learning about everything. And then I remember the discussion when it was about me doing it, it was with the both of them there.
Q. So why are you learning about it? Are you asking questions about what’s going on?
A. Like while she’s doing calls?
Q. Yeah.
A. I may have. I can’t remember a hundred percent.
Q. Like were you curious about what this was all about and?
A. I think I probably was because I know nothing about it, I think anyone would be.
Q. And were you asking about getting involved in it yourself?
A. No, I didn’t.
Q. Were you interested in getting involved in it yourself?
A. I wasn’t interested until they had brought it up and had mentioned about how G. was doing the duo’s with M. and then said that I should do it.
Q. And was that later the same day or some other time?
A. I can’t remember if it was the same day or, but I know it was like close to that.
Q. Okay.
A. It was….
Q. So either that day or close to that day?
A. Yeah.
Q. And G. raises the idea about doing duos?
A. Well it was the both of them.
Q. And how did you feel then when that gets raised? The idea that you might be the other party to that duo back then?
A. Yeah.
Q. Try to take your, you know, mind back to that time.
A. I’m not sure. I think like the whole like main thing that kind of like got me to do it would probably because they would tell me how much money you would make. I don’t think it was like I was really up for the whole prostitution part, it was more kind of like the money part.
Q. And who was telling you, of the two them, who’s telling you about the money that’s to be made?
A. They both were, like it was the both of them telling me everything.
[119] Eighth, from the same preliminary inquiry transcript, page 102, line 13: “I [the complainant] remember that at some point I definitely agreed to doing it [presumably, prostitution]”.
[120] Ninth, from the same preliminary inquiry transcript, page 108, lines 16-30 (nobody forced the complainant to do “calls”, says the Defence).
Q. Okay. Do you know why it was that you switched from doing things in Toronto to doing calls in Owen Sound?
A. We were still doing calls in Toronto as well. There was Toronto every single weekend and then calls during the week in Owen Sound.
Q. And how did you feel about doing calls in Owen Sound?
A. I agreed to it, so.
Q. You were still interested in making money, I take it?
A. Yeah.
Q. No one was forcing you to do it?
A. Pardon?
Q. No one was forcing you to do it?
A. I guess not.
[121] Tenth, from the same preliminary inquiry transcript, page 116, where the complainant acknowledged that she quit working as a prostitute for a period of about two to three months.
[122] Eleventh and finally, from the same preliminary inquiry transcript, page 168, line 14 to page 169, line 2 (she had the ability to refuse “calls”, submits the Defence).
Q. During the time that you were working doing prostitution, did you ever refuse a call?
A. There were times where I didn’t want to do any more, yeah.
Q. And how would you convey that if you didn’t want to do any more or you didn’t want…
A. Just say it, I didn’t want to do any more.
Q. Just say to who?
A. To Dave.
Q. And what would his reaction to that be?
A. He would always try to convince you to do more. Like if he had them set up then he would try to convince you to cause he got them set up.
Q. And if you said no and stuck with your no, what would happen to you, anything?
A. Not that I can remember, but I don’t even think that usually I would stick to the no. It was usually you would just do it.
Q. So did you ever refuse a call and stick with it?
A. Probably, yeah.
Conclusion on the Strength of the Evidence Regarding Exploitation
[123] In my opinion, it is neither necessary nor desirable for this Court, at this stage, to conduct some sort of a microscopic examination of the evidence in the record as it relates to the issue of exploitation.
[124] I am not sitting as the trier of fact. I am not sitting as a Judge hearing an application for certiorari to quash the committals to stand trial. I have no evidence from the accused on this Application (and I am not suggesting that such evidence is necessary). I have only the complainant’s evidence – her police statement and her testimony at the preliminary inquiry, and the findings of Morneau J. (the preliminary inquiry Judge).
[125] The accused is represented by very experienced and competent counsel, Ms. Christie. It may well be that cross-examination of the complainant at trial will be quite different than the strategy undertaken at the preliminary inquiry. It may well be that the evidence adduced at trial leaves the trier of fact with a reasonable doubt on one or more of the essential elements of counts 1 and/or 2 on the Indictment, even absent anything from the Defence. We shall see.
[126] What I do think that I should undertake, however, is an assessment of what the Crown must prove on counts 1 and 2 and whether the evidence in the record appears to be capable of supporting the essential elements of those charges.
[127] On a constitutional challenge to legislation, such an assessment is important in order to place the accused’s position in some context. In other words, it is helpful to know whether this accused, on the basis of the evidence available to this Court, appears to be someone to whom the impugned legislation was clearly not intended to apply.
[128] On count 1 of the Indictment, the charge under section 279.011 CCC, the Crown must prove that (i) the complainant was under 18 years old at the time, and (ii) the accused recruited, transported, transferred, received, held, concealed or harboured the complainant, or exercised control, direction or influence over her movements, and (iii) that the accused did that for the purpose of exploiting or facilitating the exploitation of the complainant. Consent is not a defence: subsection 279.011(2).
[129] On count 2 of the Indictment, the charge under section 279.02 CCC, the Crown must prove the offence under section 279.011, plus the additional element that the accused, directly or indirectly, thereby received a financial or other material benefit.
[130] It is relevant but not necessary that the complainant felt exploited or that s/he was, in fact, exploited. That is made clear by subsection 279.04(1) CCC. All that is required is that the accused caused (not forced) the complainant to provide or offer to provide a service (prostitution) by engaging in conduct that could reasonably be expected to (not did in fact) cause the complainant to believe that her safety, or the safety of another person known to her, would be threatened if she did not do it.
[131] That wording is different than, for example, the criminal harassment offence in the CCC. Subsection 264(1) requires proof that the alleged victim did, in fact, fear for his/her safety or the safety of another person known to him/her.
[132] Thus, although I agree with the Defence that there are passages in the evidence of the complainant that point to her being, at times, a willing participant and not necessarily fearful or having been threatened, that is not fatal to the prosecution. The more germane question is whether, in all of the circumstances, the conduct of the accused could reasonably be expected to have led her to feeling threatened if she did not participate in prostitution.
[133] There is, most certainly, evidence in the record that is capable of supporting the findings of the preliminary inquiry judge that the accused had recruited (but not necessarily forced) the complainant into prostitution and had transported her for prostitution work.
[134] On whether the accused engaged in exploitative conduct, again, there is evidence in the record that is capable of supporting the conclusion of the preliminary inquiry judge that the accused did things outlined in subsection 279.04(2) CCC, which factors Parliament has expressly delineated as being indices of exploitation. For example, the accused had allegedly pointed a gun at the complainant, multiple times – that may reasonably be seen as a threat to use force within clause (a) of subsection 279.04(2) CCC.
[135] On whether the accused received a financial or material benefit from the enterprise, again, there is evidence in the record that is capable of supporting the conclusion of the preliminary inquiry judge that he did. From time to time, he allegedly held on to the complainant’s money. And it is alleged that, normally, he took for himself a percentage of her prostitution earnings.
[136] With respect to the Defence, my view is that its focus on the evidence from the perspective of what the complainant subjectively felt, although relevant, is somewhat misplaced.
[137] At this stage, that is all that I need to say about the evidence from the complainant. In totality, it is, to date, at least capable of supporting counts 1 and 2 on the Indictment. This is not a situation at all akin or similar to the hypotheticals offered by the Defence. This is not a situation where, based on the evidentiary record before me, I am able to conclude that the impugned legislative provisions are clearly inapplicable.
Vagueness
[138] A law is void for vagueness if it fails to reasonably delineate the scope of the law and allow for coherent legal debate as to its application in a specific fact situation.
[139] Put another way, a law is void for vagueness if it fails to give objective fair notice of what is prohibited and impose real limitations on the discretion of those charged with enforcement.
[140] I begin by noting an obvious point that is fairly conceded by the Defence – absolute certainty as to what conduct is covered by a criminal law is impossible. That is why we have an inherent degree of police and prosecutorial discretion built into our criminal justice system. On top of that, we have the courts to guard against situations where a person is charged but cannot be found guilty because the evidence does not make out the offence in question to the requisite standard of proof.
[141] It is not at all unusual for a criminal offence to include terminology that is not defined by the legislators. We rely upon the courts, with input from litigators and counsel, in an adversarial process, to interpret the meaning of certain words and to decide whether a given accused’s conduct falls within the scope of the offence in question.
[142] For example, the offence of sexual assault (section 271 CCC) is not defined at all. Although the term “assault” is defined in subsection 265(1) CCC, which definition is incorporated by subsection 265(2) in to the meaning of sexual assault, Parliament provided no guidance as to when an assault becomes a sexual assault. Through the common law, we know sexual assault to be, in essence, an assault that is committed in circumstances of a sexual nature such as to violate the sexual integrity of the victim. That, of course, begs the question of what does “circumstances of a sexual nature” mean? A relatively wide spectrum of conduct could constitute a sexual assault, from a pat on someone’s buttocks to a violent rape. Those realities, however, do not make the provision void for vagueness.
[143] The Defence is correct that Parliament has chosen not to define the terms used in subsections 279.011(1) and 279.02(2) CCC, except for the meaning of “exploitation” which is dealt with in subsections (1) and (2) of 279.04.
[144] I do not see that failure as fatal to the legislation. I do not see that failure as creating a situation where these impugned provisions are void for vagueness.
[145] I agree with the Crown that many of the terms at issue (“recruits”, “transports”, “transfers”, “receives”, “holds”, “conceals” and “harbours”) are used elsewhere in the CCC and have not been the cause of a degree of uncertainty that would approach the threshold required to conclude that those provisions are void for vagueness.
[146] More important, in my view, the terminology in the impugned provisions is not unduly complicated. The words used have common, ordinary meanings that are generally well known to the citizenry. In the simplest language possible, “recruit” means to enlist or get someone involved. “Transport” means to take from A to B. “Transfer” means to hand over. “Receive” means to take or accept. “Hold” means to keep or maintain. “Conceals” means to hide or keep secret. “Harbour” means to shelter. To exercise “control, direction or influence over” means to affect. To “facilitate” something means to make it easier. “Benefit” means an advantage or gain.
[147] That leaves only the issue of exploitation. In my view, Parliament has done a good deal better than what it had to work with, the Protocol. The Protocol provides that “[e]xploitation shall include…the exploitation of the prostitution…” Parliament went much further to provide a definition of what “exploitation” means [subsection 279.04(1)] and then further still to outline some of the factors that go towards a finding of exploitation [subsection 279.04(2)].
[148] The impugned provisions are more, not less, precise than the Protocol.
[149] They are not perfect, however. No legislation can be. Ideally, the drafters would have expressly enumerated every type of conduct that constitutes exploitation. Of course, that is impossible to do. Instead, as is common throughout the CCC, Parliament provided a non-exhaustive list of things to consider. And, again, the language used in section 279.04 is fairly straightforward. “Threatened”, in subsection 279.04(1), means put at risk. In subsection 279.04(2)(a), it means that the accused gave a sign or a warning of using force or coercion. “Force” and “coercion” have similar ordinary meanings, although the former is normally restricted to something physical while the latter is more broadly defined. “Coercion”, very simply put, means persuasion by power. “Deception” means the act of misleading or making someone believe a falsity. “Position of trust, power or authority” is an expression well known in our criminal law and which appears elsewhere in the CCC.
[150] The above discussion is not meant to convey that my simplistic interpretations of these terms are etched in stone but merely to illustrate that the words used in the impugned provisions are neither novel nor complex. They are understood, more or less, in common parlance. If resort to a dictionary is required, one will find that any source consulted will give virtually the same definitions.
[151] These statutory provisions go far beyond the minimum degree of certainty required. They quite handedly allow for coherent legal debate as to what conduct will be captured by the offences. They reasonably delineate the scope of the crimes, especially compared to other sections of the CCC where, at least arguably, a much greater degree of potential ambiguity exists (like sexual assault). They provide to the public objective fair notice of what types of conduct risk running afoul of the laws. They provide real limitations on the discretion of the police and prosecutors. For example, if the conduct of the accused cannot be fit into the opening lines of subsection 279.011(1) CCC (from “recruits” to “influence over the movements of”), then that accused cannot be charged with trafficking a person under the age of 18 years, even if there is evidence that he intended to exploit the complainant. Further, if there is no evidence of an intention to exploit or facilitate the exploitation of the complainant, then the accused cannot be charged with trafficking a person under the age of 18 years, even if he recruited, for example, the complainant into the activity in question.
[152] The impugned provisions are not unconstitutionally vague.
Overbreadth
What is the Purpose of the Legislation?
[153] Within days of counsel appearing before me to argue this Constitutional Application, the Supreme Court of Canada released its decision in R. v. Safarzadeh-Markhali, 2016 SCC 14. Ms. Christie and Mr. Carnegie are aware of that decision and another one, less relevant for our purposes, released by the top Court on the same day. The Safarzadeh-Markhali, supra judgment, although not a change to the law of overbreadth, is a very succinct and the most recent pronouncement on how a Court ought to assess an argument of overbreadth. Paragraphs 24-29 and 31 are most instructive.
[24] Whether a law is overbroad within the meaning of s. 7 turns on the relationship between the law’s purpose and its effect: R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 24. It is critically important, therefore, to identify the purpose of the challenged law at the outset of the s. 7 inquiry.
[25] Moriarity summarizes the considerations that guide the task of properly characterizing Parliament’s purpose in a s. 7 analysis into overbreadth.
[26] First, the law’s purpose is distinct from the means used to achieve that purpose: Moriarity, at para. 27. A law’s means may be helpful in determining its objective, but the two must be treated separately.
[27] Second, the law’s purpose should be characterized at the appropriate level of generality, which “resides between the statement of an ‘animating social value’ — which is too general — and a narrow articulation” that amounts to a virtual repetition of the challenged provision, divorced from its context: Moriarity, at para. 28.
[28] Third, the statement of purpose should be both precise and succinct: Moriarity, at para. 29. Precision requires that courts focus on the purpose of the particular statutory provision subject to constitutional challenge: ibid.; see also RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 144.
[29] Fourth, the analysis is not concerned with the appropriateness of the legislative purpose. The court must take the legislative objective “at face value” and assume that it is appropriate and lawful: Moriarity, at para. 30. The appropriateness of a legislative objective may be relevant to its constitutionality under other Charter provisions. But it has no place in the s. 7 analysis of overbreadth.
[31] To determine a law’s purpose for a s. 7 overbreadth analysis, courts look to: (1) statements of purpose in the legislation, if any; (2) the text, context, and scheme of the legislation; and (3) extrinsic evidence such as legislative history and evolution: Moriarity, at para. 31
[154] First, I must determine the purpose of the legislation in question and, in particular, the impugned provisions.
[155] The statement of purpose must be both precise and succinct.
[156] Neither side submits that there are any express statements of purpose in the legislation itself. I agree. There are none.
[157] Turning to the text, context and overall scheme of the legislation, my view is that sections 279.01, 279.011 and 279.02 CCC, collectively on their face, are designed to prevent the trafficking of persons, especially children, by punishing those who intend to exploit them, whether for personal benefit or otherwise.
[158] I have framed the overall design of the three impugned provisions that way because section 279.01 deals with trafficking in adult persons, which necessarily includes an intention to exploit, regardless of personal gain on the part of the trafficker, while sections 279.011 and 279.02 (which are the two offences laid against this accused) deal with trafficking in children, which necessarily includes an intention to exploit, where the trafficker receives a financial or material benefit.
[159] The human trafficking provisions of the CCC are contained in the same section of Part VIII – Offences Against the Person, under the heading “Kidnapping, Trafficking in Persons, Hostage Taking and Abduction”. Those are all very serious offences, and they all have at least one thing in common – the victimization of vulnerable persons.
[160] Turning to extrinsic evidence, I note that I have the benefit of some jurisprudence which has already, to some extent, commented on the purpose of Canada’s human trafficking laws. In A.A., supra, for example, at paragraph 88, the Court of Appeal for Ontario indicated that “the object of the legislative provisions [including section 279.011 CCC]…was to criminalize a wide range of intentional conduct that has, as its purpose, the exploitation of vulnerable persons”.
[161] As another example, in Urizar, supra, the Quebec Court of Appeal, at paragraph 69, concluded that “[t]he central element of the provisions in question [including section 279.01 CCC] is the criminalization of exploitation”.
[162] Finally, I turn to the legislative history and the comments of parliamentarians. The current human trafficking provisions contained in the CCC are rooted in the Protocol. The language of the Protocol itself, including Article 3(a), makes it clear that it was intended to protect vulnerable persons from being trafficked by those who do so for an exploitative purpose.
[163] The Legislative Summary of Bill C-49, prepared by Laura Barnett for Canada’s Library of Parliament, in the very first paragraph under the heading “Introduction”, describes the overall purpose of the legislation to “prohibit trafficking in persons in Canada” as part of “the government’s commitment to the protection of vulnerable persons and ongoing strategy to combat human trafficking”.
[164] The overall thrust of the comments of Canada’s parliamentarians, as reflected in Hansard of the House of Commons Debates, is best encapsulated, in my opinion, by the comments of the Honourable Paul Harold Macklin, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, on September 26, 2005, immediately after the Bill was moved to be read a second time and referred to committee. Three goals of the legislation were outlined: (i) to prevent human trafficking, (ii) to better protect its victims (vulnerable persons, mainly women and children), and (iii) to hold traffickers (who seek to exploit the victims and, in many cases, profit from their exploitation) accountable. See tab 13 of volume 3 of the Defence materials, at pages 7988-7989 of Hansard.
[165] Taking all of the above into consideration, I conclude that the purpose of these impugned provisions (sections 279.01, 279.011 and 279.02 CCC) is to prevent human trafficking and protect vulnerable persons, especially women and children, by criminalizing a wide range of conduct aimed at exploiting them.
Are the Means Enacted to Accomplish the Legislative Objectives Tailored to and Reasonably Necessary to Achieve those Objectives?
[166] I disagree with the Defence that the impugned legislation goes too far. Specifically, I reject the notion that the legislation ought to require that the alleged victim be forced to do something that s/he did not want to do.
[167] I see nothing objectionable about Parliament’s use of the word “cause”, rather than “force”, in subsection 279.04(1) CCC, dealing with exploitation. In ordinary language, the word “cause” has a different connotation than the word “force”. Cause means to produce an effect, or bring about something, or encourage something. Force means to compel. To force X to do something generally means that it is involuntary on the part of X. In my opinion, the word “cause” is broader than the word “force” and is more consistent with the overall scheme of the legislation, which includes the explicit references to consent not being relevant, and its purpose.
[168] The key question, as stated by the Supreme Court of Canada in Bedford, supra, quoted at paragraph 51 of the very recent decision in Safarzadeh-Markhali, supra, is whether these impugned provisions are so broad in scope that they include some conduct that bears no relation to their purpose.
[169] The Defence states that they do and gives some hypotheticals to prove that point. I disagree.
[170] In my view, none of the hypothetical situations offered could possibly engage any of sections 279.01, 279.011 and 279.02 CCC. The Uber driver example, on its face, does not apply to sections 279.011 (because the passenger prostitute is, presumably, not a child) or 279.02 (because any payment to the driver is for the ride and not from the commission of a human trafficking offence). That leaves just section 279.01. The driver did transport the suspected prostitute, but there is nothing to suggest that the driver did so for the purpose of exploiting her or facilitating her exploitation. The landlord example, on its face, does not apply to sections 279.011 (because the tenant prostitute is, presumably, not a child) or 279.02 (because any payment to the landlord is for rent and not from the commission of a human trafficking offence). That leaves just section 279.01. The landlord did not do any of the conduct things listed in subsection (1), that is from “recruits” to “movements of a person”, and further, there is nothing to suggest that the landlord intended to exploit the tenant or facilitate her exploitation. The hotel concierge example, on its face, does not apply to sections 279.011 (because the guest prostitute is, presumably, not a child) or 279.02 (because the concierge employee received no benefit at all). That leaves just section 279.01. The concierge employee did not do any of the conduct things listed in subsection (1), that is from “recruits” to “movements of a person”, and further, there is nothing to suggest that the concierge employee intended to exploit the guest prostitute or facilitate her exploitation. The virtual secretarial service example, on its face, does not apply to sections 279.011 (because the escort is, presumably, not a child) or 279.02 (because the service received no benefit at all). That leaves just section 279.01. The service did transport the escort, but there is nothing to suggest that it did so for the purpose of exploiting the escort or facilitating the escort’s exploitation.
[171] I recognize that the Defence offers these hypothetical scenarios as examples only and not necessarily with detailed facts, but the point is that even very experienced and competent Defence counsel found it difficult to opine a situation where persons “with no intention to victimize anyone” (paragraph 68 of the Defence factum) could be captured by the impugned provisions.
[172] The reality is the exact opposite - the impugned legislation captures only those who intend to victimize someone, that is, those who do something for the purpose of exploiting another or facilitating his or her exploitation. The sections in question seek to punish only the morally guilty; only those with a relatively high degree of criminal intent; only those who do something that falls within the purpose of the legislation – those who recruit…or exercise control, direction or influence over the movements of a person (often a vulnerable woman or child) for the purpose of exploitation.
[173] The entire Defence argument about choice, with respect, is misplaced. It might make sense to build in an element of choice if the impugned provisions did not include the necessary element of intended exploitation on the part of the accused, but to allow someone, especially a child, to choose to be subjected to conduct that is aimed at his or her own exploitation is undesirable, it seems to me.
[174] To borrow the language used by the Supreme Court of Canada at paragraph 53 of its very recent decision in Safarzadeh-Markhali, supra, the ambit of these impugned provisions does not capture people that they were not intended to capture. They do not ensnare persons whose arrest and prosecution does not advance the purpose of the laws. They are not disproportionate to the objective of the legislation but rather are tailored to and reasonably necessary to achieve the purpose of sections 279.01, 279.011 and 279.02 CCC.
[175] The Defence is quite correct that the impugned provisions are relatively broad in that they cast a fairly wide net over conduct that may fall within human trafficking and include a fairly expansive meaning of exploitation.
[176] But there is a difference between a law that is relatively broad and one that is unconstitutionally overbroad. The impugned provisions fall within the former and not the latter category. Provided that the laws meet constitutional standards, which I find that these do, then some deference must be shown to Parliament in terms of how the legislation was drafted.
[177] The Defence overbreadth argument fails.
Conclusion on the Constitutionality of the Impugned Provisions
[178] Sections 279.01, 279.011 and 279.02 CCC are constitutionally valid. They are not contrary to section 7 of the Charter as being void for vagueness or overbroad.
[179] In the circumstances, there is no need to address section 1 of the Charter. Suffice it to say, however, that if I am wrong about the conclusion reached immediately above, I would have accepted the Crown’s concession and found that the impugned provisions could not be saved under section 1 and issued a declaration of invalidity related to the three sections in question, suspended for 18 months to allow for a legislative response. I would have declined to exempt this accused from that suspension but rather postponed the decision whether to quash counts 1 and 2 on the Indictment until trial, where a more fulsome evidentiary record is available.
The Abuse of Process Application
[180] In my view, this Application is premature and ought to be dismissed on that basis alone, without prejudice to it being brought again mid-trial or at the end of the evidentiary portion of the trial.
[181] As both sides agree that the Application depends on a finding that there is an air of reality to the argument that one or more of the exceptions included in the current subsection 286.2(4) CCC applies to this accused, which dependency, in turn, engages the restrictions outlined in subsection 286.2(5) CCC, it is my opinion that it is best for the Court to decide the Application on the most complete evidentiary record possible. That would be no earlier than the end of the complainant’s evidence at trial.
[182] In the event that I am wrong in that regard and it is determined by a higher Court that I ought to have decided the Application now, then it should be noted that I would have dismissed the Application on its merits.
[183] I would have found that the Defence had failed to prove, on balance, that there would be prejudice to this accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of a trial on counts 3 and 4 on the Indictment. As such, I would have concluded that this is not one of those clearest of cases warranting a stay of proceedings related to those two counts, or either one of them.
[184] I would have taken the Defence Application at its very highest and accepted, without deciding, that the Defence is correct regarding its submissions on the relevance of the Supreme Court of Canada’s decision in Bedford, supra (which did not deal with these specific provisions regarding child prostitution) and the lack of applicability of Canada’s Interpretation Act, subsection 43(d), and then I would have dismissed the Application on the basis that there is no air of reality in the evidence before me that this accused could be brought within any of the exceptions outlined in the current subsection 286.2(4) CCC.
[185] I would have determined that there is a complete absence of any evidence that this accused’s receipt of money from the complainant’s prostitution earnings was in the context of a legitimate living arrangement between the two of them [286.2(4)(a) CCC]. Further, I would have determined that the complainant owed no legal or moral obligation to perform the sexual services from which the accused’s benefit was derived [286.2(4)(b) CCC]. In addition, I would have found that the money received by this accused from the complainant’s prostitution earnings was not in consideration for a service or good that this accused offered, on the same terms and conditions, to the general public [286.2(4)(c) CCC]. Finally, I would have determined that there is evidence that this accused encouraged the complainant to provide sexual services, and thus, subsection 286.2(4)(d) does not apply.
[186] Having concluded that the evidentiary record before me could not possibly bring this accused within any of the exceptions in the current subsection 286.2(4) CCC, even without having reference to the restrictions contained in subsection 286.2(5) CCC, armed with the Defence concession that the stay Application depends upon a finding that there is an air of reality to the suggestion that this accused could take advantage of defences now available under the current regime but not at the time of these alleged offences (as low as the “air of reality” test is), I would have dismissed the Application.
IV. Conclusion
[187] For all of these reasons, notwithstanding Ms. Christie’s cogent arguments on behalf of the accused, the Defence Applications regarding the alleged unconstitutionality of the human trafficking provisions of the CCC and regarding alleged abuse of process are both dismissed.
[188] There is nothing prohibiting the Defence from bringing the stay Application related to counts 3 and 4 on the Indictment at trial, on a more fulsome evidentiary record. Of course, at that stage, the way in which I have framed the discussion above, taking the Application at its very highest and deciding it only on the basis of whether any of the defences available under the new regime apply, would need to be revisited.
Conlan J.
Released: April 25, 2016