R. v. T.J.F.

R. v. T.J.F.
Collection
Supreme Court Judgments
Date
2024-11-15
Neutral citation
2024 SCC 38
Case number
40749
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle; Moreau, Mary
On appeal from
Nova Scotia
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. T.J.F., 2024 SCC 38
Appeal Heard: March 27, 2024 Judgment Rendered: November 15, 2024 Docket: 40749
Between:
His Majesty The King Appellant
and
T.J.F. Respondent
Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
Reasons for Judgment: (paras. 1 to 120)
O’Bonsawin J. (Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal and Moreau JJ. concurring)
Joint Dissenting Reasons: (paras. 121 to 160)
Côté and Rowe JJ.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
His Majesty The King Appellant
v.
T.J.F. Respondent
Indexed as: R. v. T.J.F.
2024 SCC 38
File No.: 40749.
2024: March 27; 2024: November 15.
Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
on appeal from the court of appeal for nova scotia
Criminal law — Trafficking in persons — Receiving a material benefit from trafficking in persons — Exploitation — Accused charged with trafficking complainant and receiving material benefit — Complainant alleging she provided sexual services for money under threat of violence by accused intimate partner — Complainant’s friends and family testifying to violent relationship but not sexual services — Trial judge finding complainant’s evidence not credible except as corroborated by other witnesses and acquitting accused — Whether trial judge erred in holding that evidence of violent relationship did not directly address elements of offences — If so, whether error may have had material bearing on acquittal — Criminal Code, R.S.C. 1985, c. C-46, ss. 279.01, 279.02, 279.04.
Criminal law — Evidence — Assessment — Past discreditable conduct — Accused charged with trafficking complainant and receiving material benefit — Complainant alleging she provided sexual services for money under threat of violence by accused intimate partner — Complainant’s friends and family testifying to violent relationship but not sexual services — Trial judge finding complainant’s evidence not credible except as corroborated by other witnesses and acquitting accused — Whether trial judge erred by characterizing evidence of violent relationship as past discreditable conduct evidence — If so, whether error may have had material bearing on acquittal.
The complainant and the accused were in a common law relationship that spanned from 2004 to 2012. The relationship was plagued by violence and financial difficulties. According to the complainant, the accused suggested they have sex on a webcam for money, and she was unwilling to do this but agreed to avoid the accused’s violence. She claimed that the accused persuaded her to dance for men and to offer sexual services for money, and that she participated because of the accused’s violence. She also claimed that the accused was involved in posting ads offering sexual services and controlled all proceeds, and that this continued until she left the accused in 2012.
The accused was charged with trafficking the complainant and receiving a material benefit from it, contrary to ss. 279.01(1) and 279.02(1) of the Criminal Code. At trial, in addition to the complainant, five other witnesses testified: the complainant’s brother, mother and daughter, and two of her friends. These other witnesses did not provide evidence of sexual services, but did provide evidence of the accused’s violence towards the complainant. The trial judge acquitted the accused. While he accepted that the complainant found herself in a violent relationship with the accused, he found her testimony lacking in credibility, and had a reasonable doubt about the accused’s ties to any prostitution enterprise. The majority of the Court of Appeal upheld the acquittals. It held that the trial judge assessed some of the evidence based on a wrong legal principle by ruling that the accused’s violence was past discreditable conduct but that the error had no material bearing on the acquittals. The majority also concluded that the trial judge did not fail to consider all the evidence. The dissenting judge would have ordered a new trial, finding that the trial judge failed to consider all the evidence, and that treating the accused’s violence as past discreditable conduct misapprehended its nature and relevance to the actus reus and mens rea of both offences.
Held (Côté and Rowe JJ. dissenting): The appeal should be allowed, the acquittals set aside, and a new trial ordered.
Per Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.: The trial judge assessed the evidence based on a wrong legal principle by determining that the evidence of violence and threats of violence by the accused towards the complainant was evidence of past discreditable conduct. This error of law hindered his assessment of the evidence and considerably diminished the evidentiary foundation relevant to the essential elements of the trafficking in persons offence and the definition of exploitation set out in s. 279.04 of the Criminal Code. The trial judge’s error might have had a material bearing on the acquittals.
The object of the offence of trafficking in persons in s. 279.01(1) is to comprehensively respond to all forms of trafficking. This means criminalizing a wide range of conduct carried out for the purpose of exploitation. The phrase “control, direction or influence” in s. 279.01(1) is disjunctive, and the actus reus can be satisfied if the movements of the victim have only been subject to one of the elements. These elements represent a spectrum of power that the accused exerts over the victim’s movements. “Control” will regulate or govern the victim such that they will be left with little choice over their movements. “Influence” alters, sways, or affects the victim’s will when they decide how to exercise their freedom. “Direction” speaks less to the degree of power the accused exerts over the victim’s movements than to the way the accused exerts that power; it means management, guidance, advice, or instruction, and sometimes an authoritative command. It is not enough that the accused has acquired the power or the ability to control, direct, or influence the victim’s movements; they must have actualized it in one way or another. The Crown may establish the actus reus through evidence of violence and threats of violence by an accused towards a victim and, more generally, a violent relationship between the two, if the effect of that violence is such that the victim’s movements have been controlled, directed, or influenced.
The mens rea for trafficking in persons requires that the accused engaged in the actus reus for the purpose of exploiting the victim or facilitating their exploitation. Those words do not require that actual exploitation occur, but people are usually able to foresee the consequences of their acts, and if the accused is found to have knowingly exploited the victim, then it could be reasonable to infer that the accused acted with the intent to do so. The Crown must nevertheless prove that the accused subjectively intended to exploit the complainant. Exploitation, which is defined in s. 279.04, occurs when the accused engages in any conduct, including regular violence and threats of violence, that both causes the victim to provide or offer labour or a service, and could reasonably be expected to cause the victim to believe that their safety would be threatened if they failed to provide that labour or service. The latter must be assessed using an objective test, having regard to all the circumstances, including the victim’s vulnerabilities.
Past discreditable conduct evidence is evidence of the accused’s misconduct beyond what is alleged in the indictment, and is generally inadmissible. However, if it is covered by the indictment, the Crown can prove the conduct no matter how badly it may reflect on the character of the accused. In the instant case, the trial judge committed an error of law when he held that the evidence of regular violence and threats of violence by the accused against the complainant was past discreditable conduct evidence. Even though the trial judge admitted the evidence, this mischaracterization meant he did not assess it properly. That evidence could have been relevant to the essential elements of the offence. It could have formed the basis of a finding that the accused controlled, directed, or influenced the movements of the complainant during the time period specified in the indictment, and a contributing cause of the complainant’s engagement in sexual services. The trial judge’s incorrect assessment of this critical evidence seriously undermined his credibility assessment of the complainant, which he used as the rationale for acquittal.
Acquittals are not set aside lightly. Even where an error of law is made, the Crown must demonstrate that the error might have had a material bearing on the acquittal. Appellate courts should only set aside an acquittal when the verdict would not necessarily have been the same had the error not occurred. In the instant case, the trial judge’s error of law undermines the foundation of the acquittals, and the possibility of a different verdict having been reached is more than abstract or purely hypothetical. The acquittals should be set aside and a new trial ordered.
With respect to the issue of whether the trial judge considered all of the evidence, an appellate court must presume that a trial judge knows the law and deals competently with issues of fact, and must read the reasons as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered. In the present matter, the reasons show that the trial judge considered the complainant’s evidence in light of the exhibits and the evidence of other witnesses. No error warrants intervention on this issue.
Per Côté and Rowe JJ. (dissenting): The appeal should be dismissed. There is agreement with the majority that the trial judge made a legal error in characterizing certain evidence as past discreditable conduct evidence, as it was relevant to the actus reus of the offence. There is disagreement regarding the effect of this error, which did not have a material bearing on the acquittals. The Crown’s burden is a very heavy one that reflects the restricted nature of the Crown’s ability to appeal and the double jeopardy associated with a new trial.
To obtain a conviction for trafficking in persons under s. 279.01(1), the Crown must establish the mens rea of the offence: that the accused exercised control over the complainant for the purpose of exploiting her. In the instant case, the only evidence relevant to the mens rea came from the complainant herself. The trial judge was not persuaded beyond a reasonable doubt by the complainant’s testimony. Even if the evidence of the five witnesses was assessed as part of the elements of the offence, their testimony does not link the accused’s violent behaviour to the complainant’s provision of sexual services. The testimony accepted as credible did not address whether the accused exercised control over the complainant for the purpose of exploiting her.
The trial judge also made detailed credibility findings that shaped his assessment of the evidence of the other witnesses. Credibility findings by trial judges are owed deference on appeal. Though the trial judge mischaracterized the evidence of the other witnesses as past discreditable conduct evidence, he admitted all of it, and tested the complainant’s credibility and evidence against it. The trial judge’s credibility findings were the basis on which his reasonable doubt rested, and on which the accused was acquitted. There is no proper basis in law to set aside this conclusion. The majority’s reasoning comes perilously close to a ground of appeal of unreasonable acquittal, which is unavailable to the Crown, and may encourage courts to collapse the distinction between the actus reus and mens rea of the offence.
Cases Cited
By O’Bonsawin J.
Referred to: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. Morin, [1992] 3 S.C.R. 286; R. v. B. (G.), [1990] 2 S.C.R. 57; R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595; Vézeau v. The Queen, [1977] 2 S.C.R. 277; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Hodgson, 2024 SCC 25; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Gerrard, 2022 SCC 13; R. v. Kruk, 2024 SCC 7; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021; R. v. Morrissey (1995), 97 C.C.C. (3d) 193; R. v. Stanton, 2021 NSCA 57; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346; R. v. Hasselwander, [1993] 2 S.C.R. 398; Urizar v. R., 2013 QCCA 46; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225; R. v. Perreault (1996), 113 C.C.C. (3d) 573; R. v. Bazinet (1986), 25 C.C.C. (3d) 273; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; R. v. Robertson, [1987] 1 S.C.R. 918; R. v. Arp, [1998] 3 S.C.R. 339; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433; R. v. Schneider, 2022 SCC 34; R. v. Watson (1996), 50 C.R. (4th) 245; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. B. (C.R.), [1990] 1 S.C.R. 717; R. v. D. (L.E.), [1989] 2 S.C.R. 111; Makin v. Attorney-General for New South Wales, [1894] A.C. 57; R. v. A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377; Chahinian v. R., 2022 QCCA 499; R. v. Sinclair, 2020 ONCA 61, 384 C.C.C. (3d) 484; R. v. Buzzanga (1979), 49 C.C.C. (2d) 369; R. v. Chartrand, [1994] 2 S.C.R. 864; R. v. Evans, [1993] 2 S.C.R. 629.
By Côté and Rowe JJ. (dissenting)
R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Hodgson, 2024 SCC 25; R. v. Kruk, 2024 SCC 7; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021; R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. Stanton, 2021 NSCA 57.
Statutes and Regulations Cited
Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years), S.C. 2010, c. 3, s. 2.
Act to amend the Criminal Code (trafficking in persons), S.C. 2005, c. 43.
Act to amend the Criminal Code (trafficking in persons), S.C. 2012, c. 15, s. 2.
Bill C‑268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years), 3rd Sess., 40th Parl., 2010.
Bill C‑49, An Act to amend the Criminal Code (trafficking in persons), 1st Sess., 38th Parl., 2004‑2005.
Criminal Code, R.S.C. 1985, c. C‐46, ss. 279.01(1) [ad. 2005, c. 43, s. 3], (3) [ad. 2015, c. 16, s. 1], 279.011(1), 279.02 [ad. 2005, c. 43, s. 3], 279.03 [idem], 279.04 [idem], 676(1)(a), 693(1)(a).
Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 118.
Interpretation Act, R.S.C. 1985, c. I‑21, s. 12.
Treaties and Other International Instruments
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2237 U.N.T.S. 319, preamble, Articles 2(a), 3.
United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209.
Authors Cited
Black’s Law Dictionary, 12th ed., by Bryan A. Garner. St. Paul, Minn.: Thomson Reuters, 2024, “control”, “direct”, “exercise”, “influence”.
Canada. House of Commons. House of Commons Debates, vol. 140, No. 125, 1st Sess., 38th Parl., September 26, 2005, pp. 7988, 7990.
Canada. House of Commons. House of Commons Debates, vol. 140, No. 135, 1st Sess., 38th Parl., October 17, 2005, pp. 8619‑20, 8631.
Canada. National Inquiry into Missing and Murdered Indigenous Women and Girls. Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Vancouver, 2019.
Canada. Statistics Canada. Canadian Centre for Justice and Community Safety Statistics. Violent victimization and perceptions of safety: Experiences of First Nations, Métis and Inuit women in Canada, by Loanna Heidinger. Ottawa, April 2022.
Canada. Statistics Canada. Gender-based violence and unwanted sexual behaviour in Canada, 2018: Initial findings from the Survey of Safety in Public and Private Spaces, by Adam Cotter and Laura Savage. Ottawa, December 2019.
Canada. Truth and Reconciliation Commission. Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Winnipeg, 2015.
Gluzman, Helena. “Human Trafficking and Prostitution in Canada — Intersections and Challenges” (2018), 66 C.L.Q. 109.
Gourlay, Matthew, et al. Modern Criminal Evidence. Toronto: Emond Montgomery, 2022.
McCormack, Nancy. The Dictionary of Canadian Law, 5th ed. Toronto: Thomson Reuters, 2020, “direction”.
Oxman‑Martinez, Jacqueline, Marie Lacroix and Jill Hanley. Victims of Trafficking in Persons: Perspectives from the Canadian Community Sector. Ottawa: Department of Justice Canada, 2005.
Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence, 8th ed. Toronto: Irwin Law, 2020.
Plouffe‑Malette, Kristine. “L’interprétation de la criminalisation de la traite des êtres humains en droit pénal canadien à l’aune du Protocole de Palerme: analyse de l’arrêt Urizar de la Cour d’appel du Québec” (2014), 44 R.D.U.S. 1.
Quebec. Public Inquiry Commission on relations between Indigenous Peoples and certain public services. Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec: listening, reconciliation and progress — Final report. Val‑d’Or, 2019.
Roach, Kent. Criminal Law, 8th ed. Toronto: Irwin Law, 2022.
Snyder, Emily, Val Napoleon and John Borrows. “Gender and Violence: Drawing on Indigenous Legal Resources” (2015), 48 U.B.C. L. Rev. 593.
Vauclair, Martin, Tristan Desjardins and Pauline Lachance. Traité général de preuve et de procédure pénales 2024, 31st ed. Montréal: Yvon Blais, 2024.
Watt, David. Watt’s Manual of Criminal Evidence. Toronto: Thomson Reuters, 2024.
APPEAL from a judgment of the Nova Scotia Court of Appeal (Farrar, Bryson and Van den Eynden JJ.A.), 2023 NSCA 28, 425 C.C.C. (3d) 475, 88 C.R. (7th) 172, [2023] N.S.J. No. 148 (Lexis), 2023 CarswellNS 315 (WL), affirming a decision of Coady J., 2021 NSSC 290, [2021] N.S.J. No. 437 (Lexis), 2021 CarswellNS 792 (WL). Appeal allowed, Côté and Rowe JJ. dissenting.
Mark A. Scott, K.C., and Glenn Hubbard, for the appellant.
David J. Mahoney, K.C., and Michelle James, for the respondent.
The judgment of Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ. was delivered by
O’Bonsawin J. —
I. Overview
[1] Between 2004 and 2012, T.J.F. (the “accused”) and J.D. (the “complainant”) were in a common law relationship marked by violence, evictions, and financial difficulties. The couple relocated from Halifax, Nova Scotia, to Fort Saskatchewan, Alberta, then to Edmonton, Alberta, and eventually returned to Halifax. While in Fort Saskatchewan, they started engaging in sexual services for compensation, initially by having sex on a webcam, which then evolved to the provision of sexual services by the complainant.
[2] The accused was charged with trafficking in persons, between November 1, 2006, and December 31, 2011, and receiving a material benefit from it, contrary to ss. 279.01(1) and 279.02(1) of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”).
[3] A six-day trial was held in September 2021 during which the Crown called the complainant and seven other witnesses, and tendered six exhibits. The accused elected not to testify. He was acquitted of both charges.
[4] For the reasons that follow, I conclude that the trial judge assessed the evidence based on a wrong legal principle by determining that the evidence of violence and threats of violence by the accused towards the complainant was evidence of past discreditable conduct, leading to a misapprehension of the evidence. This error of law hindered his overall assessment of the evidence and considerably diminished the evidentiary foundation relevant to the essential elements of the trafficking in persons offence and the definition of exploitation set out in s. 279.04 Cr. C. I am satisfied, to a reasonable degree of certainty, that the verdicts of acquittal would not necessarily have been the same had this error not occurred.
[5] I would allow the appeal, set aside the verdicts of acquittal, and order a new trial.
II. Factual Context
[6] The following summarizes key elements of the evidence of the complainant and the five civilian witnesses (the “five other witnesses” or the “other witnesses”), and exhibits, as detailed by the trial judge in his reasons.
A. The Evidence of the Complainant
[7] The trial judge acknowledged that the complainant’s testimony “paints a disturbing case of human exploitation on a grand scale” but cautioned that “[t]his narrative does not represent findings of fact” (2021 NSSC 290, at para. 12).
[8] The complainant and the accused met in Halifax. They were in a common law relationship from 2004 to 2012, during which time they cared for two children and relocated from Halifax to Fort Saskatchewan, then to Edmonton, before returning to Halifax.
[9] The complainant testified that her relationship with the accused was plagued by violence, evictions, and financial difficulties. She worked in various bars, while the accused was rarely employed. The couple was “financially strapped” and were frequently evicted. The accused was also prone to bursts of anger and violence against the complainant (para. 3).
[10] While in Fort Saskatchewan, the complainant was working in a bar while the accused chose not to work. Their financial difficulties were ongoing, and the accused’s violence escalated to a level that was “twice as bad as in Halifax” (para. 4). Soon after the complainant secured a better-paying job at a strip bar in Edmonton, the accused suggested they have sex on a webcam for money. The complainant was unwilling to do this but agreed to avoid the accused’s violence.
[11] Unsatisfied with their financial earnings, the accused persuaded the complainant to dance for men, and eventually, to offer sexual services for money. The complainant did not want to offer sex for money but participated because of the accused’s violence and threats towards her.
[12] The complainant testified that the physical abuse she endured “was a daily occurrence” (para. 6). At one point, the accused broke her finger because she refused his request for her to have sex with a woman. The complainant also testified that the accused persuaded her to use cocaine and other hard drugs by threatening her and her children.
[13] The complainant testified that the accused was deeply involved in the sexual services. He posted ads offering sexual services and accompanied her to clients’ locations to either watch or listen to the sexual acts requested by clients. All proceeds went to the accused, while the complainant “only received enough to pay a few bills” (para. 8).
[14] The sexual services and violence continued until the complainant left the accused in 2012. Fearing she could lose her children, the complainant never disclosed to anyone what was happening while it was occurring.
B. The Evidence of the Five Other Witnesses
[15] The Crown called five other witnesses: the complainant’s brother, mother, and daughter, and two of her friends, J.K. and K.L.
[16] The complainant’s brother testified that the accused and the complainant fought and that the accused “was always screaming at [the complainant] and broke all kinds of things around him” (trial reasons, at para. 18). He recalled seeing both going out at night, and that the accused had lots of cash.
[17] The complainant’s mother did not provide evidence of sexual services or direct evidence of family violence, although parts of her testimony implied a violent home.
[18] The complainant’s daughter lived with the complainant and the accused. She testified that the couple fought and that the accused “would break things” in Halifax (para. 28). Once they moved to Alberta, the fighting intensified to a point where the accused and the complainant “fought all the time” (ibid.). She recalled seeing her mother’s lip “split open” (ibid.), and hearing threats to kill and screams. Upon their return to Halifax, she testified seeing the accused “forcefully push [the complainant] into a wall” (para. 30). When asked about the accused and the complainant’s late-night outings, the daughter explained that she thought they went out to work.
[19] In addition to family witnesses, the Crown called two of the complainant’s friends to testify. The complainant’s friend, J.K., lived with the couple when they returned to Halifax from Edmonton. He described the relationship between the accused and the complainant as “nothing out of the ordinary” and testified hearing “a lot of yelling and occasional loud banging” (para. 32). He assumed that when both were out together, which happened a few times per week, they were grocery shopping.
[20] The complainant’s other friend, K.L., testified that she saw many disputes and injuries suffered by the complainant. She testified that she drove the couple to hotels and nightclubs, and that she would sometimes pick them up at night. She also lent them her computer regularly. K.L. later discovered the sexual services ads on Craigslist, and confronted the complainant about it, who hung up the phone upset and crying. Shortly after, she received a call from the accused who stated that “if she went to the police, he would have her charged and she would lose her job” (para. 37).
C. The Exhibits
[21] The Crown also tendered six exhibits, four of which are relevant for the purposes of this appeal:
• Medical reports from the Royal Alexandra Hospital in Edmonton, Alberta, detailing that the complainant attended on August 12, 2009, with an “upper extremity injury right finger” with a “possible open dislocation” (trial reasons, at para. 13);
• Medical reports from the Fort Saskatchewan Health Centre, detailing that the complainant attended on January 16, 2008, with a “cut [right] angle of the mouth” (para. 14);
• A Craigslist affidavit enclosing two ads for sexual services, one dated March 31, 2009, and the other dated May 29, 2009, both with a phone number; and
• A Rogers Communications affidavit confirming that the two phone numbers on both Craigslist ads belonged to the accused. The affidavit also confirms that the authorized user phone above the second ad belonged to the complainant.
III. Judicial History
A. Supreme Court of Nova Scotia, 2021 NSSC 290 (Coady J.)
[22] The trial judge acquitted the accused. He reasoned that while there was much to suggest that the accused was part of a “prostitution business”, there was not enough to establish proof beyond reasonable doubt (para. 70).
[23] The trial judge found the complainant’s testimony lacking in credibility. As for the evidence of the five other witnesses, he held that they did not directly address the essential elements of the offences, resting the onus on the complainant to provide direct evidence of such elements.
[24] The trial judge noted that the complainant “was often prone to exaggeration and hyperbole” during her testimony, and sometimes directed her answers at the accused (para. 58). He found that the complainant’s cross-examination further altered her testimony, highlighting numerous incoherencies, inconsistencies, and contradictions with earlier statements.
[25] As for the other witnesses, the trial judge set aside part of their evidence. He held that they “related to [the accused]’s bad character which, usually, is presumptively inadmissible” (para. 42). He still admitted the evidence, given that they “assist[ed] the Court in understanding the relationship between the parties and the context in which the alleged abuse occurred” (para. 44). The trial judge held that the character evidence “establishe[d] a pattern of dominant behaviour by the accused which allows the criminal conduct to exist in that environment; in this case the exploitation of [the complainant]” (para. 43). The character evidence was “a backdrop in which such exploitation could thrive” (para. 57).
[26] While the trial judge accepted that the complainant “found herself trapped in a violent, unhappy, and loveless relationship” with the accused who subjected her to “threats, intimidation, and injury”, he remained troubled by a reasonable doubt about the accused’s ties to any prostitution enterprise (ibid.). He acquitted the accused on all charges.
B. Nova Scotia Court of Appeal, 2023 NSCA 28, 425 C.C.C. (3d) 475
[27] The Crown appealed the acquittals, alleging that the trial judge committed three errors of law:
(a) he assessed the evidence based on a wrong legal principle;
(b) he failed to consider all relevant evidence; and
(c) he erred with respect to the legal effect of factual findings made.
(A.F., at para. 2)
(1) The Majority (Bryson J.A., Farrar J.A. Concurring)
[28] The majority of the Court of Appeal dismissed the appeal and upheld the acquittals.
[29] First, the majority held that the trial judge assessed some of the evidence based on a wrong legal principle by ruling that the accused’s threats, intimidation and violence were past discreditable conduct. However, the error had no material bearing on the acquittals, since the judge still held a reasonable doubt on the essential elements of the offences, namely, that the accused “exploited [the complainant] or benefited from any alleged exploitation of her” (ibid.; see also para. 31). The majority opined that evidence of violence alone did not prove exploitation, and, as such, the evidence of the other witnesses, limited to violence, could not establish exploitation. In the majority’s view, only the complainant provided evidence of exploitation, but the trial judge found that she lacked credibility.
[30] Second, the majority concluded that the trial judge did not fail to consider all the evidence. In its view, he did not piecemeal the evidence by treating the complainant’s credibility as determinative of the entire case. According to the majority, since the other witnesses’ evidence “was reviewed, but did not establish actual or intended exploitation” (para. 48), it could only corroborate the complainant’s description of domestic violence. It was therefore adequate for the trial judge to treat the complainant’s credibility on the element of exploitation as determinative.
[31] The majority also held that the trial judge adequately grappled with all the evidence even though he did not address the two Craigslist ads and their associated phone numbers in his reasons. The majority opined that the trial judge was alive to this inculpatory evidence “because he recited the evidence describing those numbers” (para. 54). The trial judge simply found the evidence insufficient “to resuscitate [the complainant]’s credibility” (ibid.; see also para. 57).
[32] Finally, the majority held that the trial judge did not fail to appreciate the legal effect of his factual findings since none established exploitation. The majority further held that the presumption of s. 279.01(3) Cr. C. does not establish exploitation.
(2) The Dissent (Van den Eynden J.A.)
[33] The dissenting judge, Van den Eynden J.A., would have allowed the appeal and ordered a new trial. In her view, all three errors raised by the Crown might have had a material bearing on the acquittals.
[34] First, the dissenting judge agreed with the majority that the trial judge assessed the evidence of the accused’s violence based on a wrong legal principle by treating it as evidence of past discreditable conduct (paras. 90-96 and 99).
[35] However, contrary to the majority, the dissenting judge ruled that the trial judge “misapprehended the nature and relevance of the violent acts the [accused] inflicted on the complainant” (para. 94), as they were relevant to establishing exploitation, and the actus reus and mens rea of both offences.
[36] Second, the dissenting judge found that the trial judge failed to consider all the evidence. In her view, the evidence of the other witnesses on the accused’s violent acts could have “strengthen[ed] the credibility and reliability of the complainant’s evidence” (para. 104). She also held that the trial judge failed to grapple with the presence of the accused’s phone number in the sexual services ads.
[37] Finally, the dissenting judge opined that the trial judge erred regarding the legal effect of his factual findings. She determined that, had the trial judge applied the proper legal framework, “the actus reus may well have been established and the presumption [found in s. 279.01(3) Cr. C.] would therefore have applied” (para. 111).
IV. Issues
[38] This is an appeal as of right and is therefore limited to questions of law on which the judge of the Nova Scotia Court of Appeal dissented (s. 693(1)(a) Cr. C.).
[39] The Crown raised two questions in its notice of appeal: (i) whether the trial judge failed to consider all the evidence, and (ii) whether the trial judge erred regarding the legal effect of his factual findings.
[40] Shortly before the hearing, the Crown withdrew its arguments supporting the second question regarding the legal effect of the trial judge’s factual findings, leaving only the first question to be decided.
[41] However, a closer reading of the reasons of the Court of Appeal reveals that the dissenting judge disagreed with the majority on whether the mischaracterization of part of the evidence as evidence of past discreditable conduct amounted to a misapprehension of the evidence (paras. 8, 67, 90-96 and 99). While the majority ruled that this error “did not taint [the trial judge’s] legal analysis of the elements of the offence” (para. 35), the dissenting judge opined that the trial judge’s reasons demonstrated a “lack of understanding” of the concept of past discreditable conduct, which led him to “misapprehen[d] the nature and relevance of the violent acts the [accused] inflicted on the complainant” (para. 94). This is a question of law that requires us to determine whether the trial judge’s mischaracterization of the evidence of the other witnesses tainted his analysis of the evidence (see R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 29, citing R. v. Morin, [1992] 3 S.C.R. 286, at p. 295, and R. v. B. (G.), [1990] 2 S.C.R. 57, at p. 75).
[42] Lastly, in a criminal legal system built on the presumption of innocence, acquittals are not set aside lightly. Even when errors of law are made, appellate courts should only set aside an acquittal when “the verdict would not necessarily have been the same had the errors not occurred” (R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595, at para. 2, citing Vézeau v. The Queen, [1977] 2 S.C.R. 277, at pp. 291-92; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14). Our Court will thus have to determine if the alleged error(s) of law might have had a material bearing on the verdicts of acquittal (R. v. Hodgson, 2024 SCC 25, at para. 36).
[43] In sum, three questions are raised by this appeal:
1. Did the trial judge fail to consider all the evidence?
2. Did the trial judge misapprehend the evidence?
3. Might the error(s) of law, if any, have had a material bearing on the acquittals?
V. Analysis
[44] My analysis is divided into three parts. First, I will demonstrate that the trial judge considered all the evidence. Second, I will explain that the trial judge assessed the evidence based on a wrong legal principle, leading to a misapprehension of the evidence. Finally, I will conclude that the error of law the trial judge committed might have had a material bearing on the acquittals.
A. Did the Trial Judge Fail To Consider All the Evidence?
[45] The Crown argues that the trial judge failed to consider all the evidence because he “piecemealed” the evidence by subjecting the complainant’s testimony to the criminal standard of proof (A.F., at para. 127), and also ignored the Craigslist ads (para. 130).
[46] The accused responds that the trial judge properly considered the evidence of the other witnesses as well as all documentary evidence (R.F., at para. 83; see also para. 91). I agree.
[47] When an appellate court reviews reasons for errors of law, it must be “rigorous in its assessment”, approaching the review in the same way it would approach allegations of insufficient reasons (R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 79). It must presume that a trial judge “know[s] the law . . . and deal[s] competently with the issues of fact” (R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 32 and 55; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 54; G.F., at para. 74; R. v. Gerrard, 2022 SCC 13, at para. 2; R. v. Kruk, 2024 SCC 7, at para. 84). It is not enough to suspect the trial judge erred in law; the appellate court must be satisfied that the trial court erred having given its reasons “a fair reading” (J.M.H., at paras. 20, 23 and 31). That is, having read them “as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered” (R.E.M., at para. 16; see, in the context of an appeal from an acquittal, R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 18, citing R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 203-4).
[48] Applying these principles to the present matter, the trial judge devoted five paragraphs to the framework through which he would assess the credibility and reliability of the complainant (paras. 52-56). Within this framework, he wrote explicitly that “[w]here the Crown’s case is wholly dependent on the testimony of the complainant it is essential the credibility and reliability of the complainant’s evidence be tested in the context of all the rest of the evidence” (para. 53, citing R. v. Stanton, 2021 NSCA 57, at para. 67). He did just that. The reasons show that the trial judge considered the complainant’s evidence in light of the exhibits and the evidence of other witnesses.
[49] I see no error that warrants our intervention on this issue. The trial judge considered all the evidence. The fact that he did not discuss in greater detail the influence that specific evidence had on his reasoning is not an error of law. The trial judge was not required to “set out every finding or conclusion in the process of arriving at the verdict”, nor did he have to detail his finding on each piece of evidence before him (R.E.M., at paras. 18 and 20).
[50] Crucially, however, the consideration of evidence must not be confused with the assessment of evidence. As I will explain below, even if the trial judge considered all the evidence in his reasons, he assessed the evidence of the other witnesses based on a wrong legal principle. This error of law hindered his overall assessment of the evidence.
B. Did the Trial Judge Misapprehend the Evidence?
[51] Before addressing the trial judge’s assessment of the evidence based on a wrong legal principle, I will interpret s. 279.01 Cr. C. This provision establishes the offence of trafficking in persons.
(1) Interpretation of Section 279.01 Cr. C.
[52] Criminal law