R. v. A.A., 2015 ONCA 558

• Judge: Watt, van Rensburg and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 02, 2014
• Jurisdiction: Ontario
• Citations: 2015 ONCA 558;(2015), 337 O.A.C. 20 (CA)

R. v. A.A. (2015), 337 O.A.C. 20 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JL.028

Her Majesty the Queen (appellant/respondent by way of cross-appeal) v. A.A. (a young person) (respondent/appellant by way of cross-appeal)

(C57716; C58117; 2015 ONCA 558)

Indexed As: R. v. A.A.

Ontario Court of Appeal

Watt, van Rensburg and Pardu, JJ.A.

July 29, 2015.

Summary:

The accused and G.M.S. were both 16 when they began a relationship. G.M.S. danced in strip clubs, and gave the accused the money. The accused was arrested on more than a dozen charges arising out of the four-month relationship. A judge of the Youth Court found the accused guilty of assault with a weapon, assault, and failure to comply with an undertaking. The accused was found not guilty of trafficking of a person under 18, receiving a material benefit from trafficking of a person under 18, and living on the avails of prostitution. The Crown appealed the acquittals. The accused appealed his convictions.

The Ontario Court of Appeal allowed the Crown's appeal from the acquittals, and ordered a new trial. The Court dismissed the accused's appeal from his convictions.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 11

Drafting and interpretation of criminal statutes - General principles - [See second Criminal Law - Topic 4860 ].

Criminal Law - Topic 703

Sexual offences, public morals and disorderly conduct - Sexual offences - Particular offences - Sexual exploitation of a young person - The Ontario Court of Appeal considered exploitation under s. 279.04 of the Criminal Code - "On a straight-up reading of this definition of exploitation, three conclusions emerge: i. the expectation of the specific belief engendered by the accused's conduct must be reasonable, thus introducing an objective element; ii. the determination of the expectation is to be made on the basis of all the circumstances; and iii. the person's safety need not actually be threatened. In essence, for there to be exploitation, an accused's conduct must give rise to a reasonable expectation of a particular state of mind in the victim. In addition, and applying the presumption of consistent expression, the term 'safety' that appears in s. 279.04 is not limited to the state of being protected from physical harm, but also extends to psychological harm. ... Further, on a plain reading of s. 279.04 as it was at the time of the offence, nothing in the language of s. 279.04 excluded deception or other forms of psychological pressure from the range of behaviour that satisfies the conduct requirement in s. 279.011(1), as well as the applicable portion of the definition of exploitation in s. 279.04. While the legislation was later amended to make this point more clear, this did not change the law. This interpretation is consistent with the language of s. 279.04, as well as the intention of Parliament in enacting the trafficking provisions." - See paragraphs 70 to 73.

Criminal Law - Topic 703

Sexual offences, public morals and disorderly conduct - Sexual offences - Particular offences - Sexual exploitation of a young person - The Ontario Court of Appeal allowed the Crown's appeal from acquittal on the counts of trafficking of a person under 18 (Criminal Code, s. 279.011(1)) and receiving a material benefit from trafficking of a person under 18 (s. 279.02) - The trial judge applied the wrong legal standard in deciding whether exploitation was present on the facts - "[I]n determining whether there was exploitation on the facts, the trial judge began by correctly stating the objective standard expressed in s. 279.04. However, in applying this standard to the factual findings made, the trial judge lost sight of the objective requirement of determining whether there was exploitation. The trial judge's finding that exploitation did not arise was erroneously based on the complainant's subjective belief as to whether her safety was threatened. This ran contrary to the statutory language under s. 279.04. ... The trial judge failed to consider any objective factors in arriving at her conclusion. ... While the complainant did not link the assault to her choice to dance, this does not mean an objective view of the evidence would not have permitted such a conclusion. Further, ... s. 279.04 does not require that the complainant's safety actually be threatened and safety includes a consideration of psychological safety." - In the end result, the Court set aside the acquittal and ordered a new trial - See paragraphs 74 to 77.

Criminal Law - Topic 703

Sexual offences, public morals and disorderly conduct - Sexual offences - Particular offences - Sexual exploitation of a young person - The Ontario Court of Appeal provided guidance on the relationship between the definition of exploitation under s. 279.04 of the Criminal Code and the purpose requirement under s. 279.011(1) - "[I]n considering whether the [human trafficking] offence under s. 279.011(1) is established, the analysis does not end at whether there was actual exploitation. In cases where exploitation, as defined in s. 279.04, arises from the facts, inferring that the accused's purpose was to exploit the victim will usually be a relatively straightforward task. In cases where the facts do not lend themselves to a finding of actual exploitation, the definition of exploitation in s. 279.04 informs the court's analysis of whether the accused was acting with the requisite purpose when he or she committed one of the listed acts. However, it does not become an essential element of the offence. 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. ... This interpretation is also consistent with the object of the legislative provisions" - See paragraphs 78 to 88.

Criminal Law - Topic 703

Sexual offences, public morals and disorderly conduct - Sexual offences - Particular offences - Sexual exploitation of a young person - The Ontario Court of Appeal allowed the Crown's appeal from the accused's acquittal on the count of living on the avails of G.M.S.'s prostitution (Criminal Code, s. 212(2)) - First, the trial judge erred in holding that a single act of the requisite character could not amount to prostitution for the purposes of the offence in s. 212(2) - G.M.S. was 16 - She had sexual intercourse with a patron of a strip club, and received $100 in payment for that act of sexual intercourse - She turned the money over to the accused, in accordance with their arrangement - Proof of each of those elements established an offence under s. 212(2) - Second, the trial judge was correct about the inapplicability of the presumption in s. 212(3) - The basic facts necessary to engage the presumption, i.e., that the accused lived with or was habitually in the company of G.M.S. who was a "prostitute", which was rebuttable by the introduction of evidence to the contrary, were lacking - "The presumption assists the Crown in its proof, but its operation is beside the point where proof is made otherwise." - In the end result, the Court set aside the acquittal and ordered a new trial - See paragraphs 89 to 99.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4684 ].

Criminal Law - Topic 4377.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding reliability of witnesses' testimony - [See Criminal Law - Topic 4684 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - A ground of appeal focussed on the trial judge's treatment of inconsistencies in the testimony of the complainant; specifically, that the trial judge failed to fully analyze the inconsistencies and to appreciate their overall impact on the complainant's credibility and the reliability of her testimony - The Crown characterized the complaint as a challenge to the adequacy of the trial judge's reasons - The Ontario Court of Appeal discussed the basic principles governing its review - "First, our approach is functional. An appeal based on a claim of insufficient reasons will fail unless the reasons are so deficient that they foreclose meaningful appellate review. ... Second, credibility determinations attract a high degree of deference on appellate review. ... Third, to determine the sufficiency of reasons, we are to read those reasons as a whole in the context of the evidence adduced and the arguments and positions advanced at trial. ... Fourth, in composing reasons for judgment, a trial judge is not required to discuss all the evidence or to answer every argument advanced by counsel. ... Fifth, we accord significant deference to a trial judge's appreciation of the evidence adduced at trial, as well as his or her findings on the credibility of witnesses and the reliability of their testimony. Absent palpable and overriding error, determinations of credibility and reliability made by the trial judge are to be respected on appeal" - See paragraphs 116 to 121.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or error of law - The Ontario Court of Appeal reviewed the Crown's right of appeal from acquittal - "Under s. 676(1)(a) of the [Criminal] Code, the Crown is entitled to appeal an acquittal provided any ground of appeal raised involves a question of law alone. In general terms, the interpretation of a statute, as for example a determination of the essential elements of an offence or the meaning of a term that is an integral part of an essential element involves a question of law alone. ... Legal error also occurs when a trial judge assesses an item or several items of evidence on the basis of an erroneous legal principle. ... On the other hand, an error in assessing the weight to be assigned to an item of evidence, or to the evidence as a whole, to determine whether it meets the standard of proof required of the Crown is an error of fact, not of law" - See paragraphs 63 to 65.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or error of law - A ground of appeal alleged that the trial judge erred in her interpretation and application of the statutory language in s. 279.04 of the Criminal Code, which defined exploitation - The Ontario Court of Appeal considered and applied the governing principles of statutory interpretation - See paragraphs 66 to 69.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The Ontario Court of Appeal discussed the governing principles when findings of guilt were challenged as unreasonable - See paragraphs 138 to 143.

Criminal Law - Topic 4951

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - Appeal by Crown from acquittal - [See second and fourth Criminal Law - Topic 703 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See second Criminal Law - Topic 4860 ].

Words and Phrases

Exploitation - The Ontario Court of Appeal interpreted the term "exploitation" as defined in s. 279.04 of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 70 to 73.

Cases Noticed:

Johnson v. R., [1975] 2 S.C.R. 160, refd to. [para. 64].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 65].

R. v. Powell (G.) (2010), 258 O.A.C. 247; 251 C.C.C.(3d) 475; 2010 ONCA 105, refd to. [para. 65].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 67].

R. v. Hutchinson (C.J.), [2014] 1 S.C.R. 346; 454 N.R. 247; 342 N.S.R.(2d) 348; 1083 A.P.R. 348; 2014 SCC 19, refd to. [para. 67].

R. v. Zeolkowski, [1989] 1 S.C.R. 1378; 95 N.R. 149; 58 Man.R.(2d) 63, refd to. [para. 68].

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47, refd to. [para. 71].

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, refd to. [para. 71].

R. v. Urizar (2013), 99 C.R.(6th) 370; 2013 QCCA 46, refd to. [para. 85].

R. v. Di Paola (1978), 43 C.C.C.(2d) 199 (Ont. C.A.), refd to. [para. 95].

R. v. Katigbak (R.), [2011] 3 S.C.R. 326; 422 N.R. 1; 283 O.A.C. 331; 2011 SCC 48, refd to. [para. 101].

R. v. McRae (S.), [2013] 3 S.C.R. 931; 451 N.R. 375; 2013 SCC 68, refd to. [para. 101].

R. v. Cassidy, [1989] 2 S.C.R. 345; 100 N.R. 321; 36 O.A.C. 1, refd to. [para. 101].

R. v. Audet (Y.), [1996] 2 S.C.R. 171; 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81, refd to. [para. 101].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 117].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 117].

R. v. Vuradin (F.), [2013] 2 S.C.R. 639; 446 N.R. 53; 553 A.R. 1; 583 W.A.C. 1; 2013 SCC 38, refd to. [para. 117].

R. v. Wadforth (D.) (2009), 254 O.A.C. 295; 247 C.C.C.(3d) 466; 2009 ONCA 716, refd to. [para. 118].

R. v. O.M. (2014), 321 O.A.C. 312; 313 C.C.C.(3d) 5; 2014 ONCA 503, refd to. [para. 118].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 119].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 121].

R. v. N.S. et al., [2012] 3 S.C.R. 726; 437 N.R. 344; 297 O.A.C. 200; 2012 SCC 72, refd to. [para. 131].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 131].

R. v. Norman (D.L.) (1993), 68 O.A.C. 22; 16 O.R.(3d) 295 (C.A.), refd to. [para. 132].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 139].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 139].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 216 C.C.C.(3d) 353; 2007 SCC 5, refd to. [para. 139].

R. v. A.G., [2000] 1 S.C.R. 439; 252 N.R. 272; 132 O.A.C. 1; 2000 SCC 17, refd to. [para. 142].

R. v. W.H., [2013] 2 S.C.R. 180; 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 A.P.R. 1; 2013 SCC 22, refd to. [para. 143].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 143].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 279.04 [para. 57 et seq].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 45(2) [para. 69].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, No. 36, Sess. 1, 41st Parliament (October 25, 2011), pp. 1715 to 1730; 1750 to 1800 [para. 73, footnote 1].

Canada, Hansard, House of Commons Debates, No. 112, Sess. 1, 41st Parliament (April 27, 2012), pp. 1405 to 1420 [para. 73, footnote 1].

Canada, Hansard, House of Commons Debates, No. 125, Sess. 1, 38th Parliament (September 26, 2005), pp. 1255 to 1310; 1640 to 1705 [para. 73, footnote 1].

Canada, Hansard, House of Commons Debates, No. 135, Sess. 1, 38th Parliament (October 17, 2005), pp. 1540 to 155 [para. 75, footnote 1].

Hansard - see Canada, Hansard, House of Commons Debates.

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 1, 210 [para. 67]; 214-215 [para. 68]; 579 [para. 69].

Counsel:

Megan Stephens, for the appellant/respondent by way of cross-appeal;

James D. Harbic and Robert Harbic, for the respondent/appellant by way of cross-appeal.

The appeal from acquittals and cross-appeal from convictions were heard on December 2, 2014, before Watt, van Rensburg and Pardu, JJ.A., of the Ontario Court of Appeal. In reasons written by Watt, J.A., the Court delivered the following judgment, released on July 29, 2015.