WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.

WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

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

DATE: 20150729

DOCKET: C57716 & C58117

Watt, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant/

Respondent by way of cross-appeal

and

A.A. (a young person)

Respondent/

Appellant by way of cross-appeal

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

Heard: December 2, 2014

On appeal from the acquittals and cross-appeal from the
    convictions entered by Justice Ann M. Alder of the Ontario Court of Justice,
    dated September 5, 2013.

Watt J.A.:

[1]

A.A. and G.M.S. met in a park. Both were 16. They began a relationship
    almost immediately. A parasitic one. G.M.S. danced in strip clubs for money.
    A.A. got the money. All the money. In this way, A.A. said, they could have a
    good life, a better life than either had when they met.

[2]

The good life never arrived. The relationship ended. The end came when
    A.A. was arrested on more than a dozen charges arising out of the things that
    G.M.S. said happened during their relationship.

[3]

At trial before a judge of the Youth Court, A.A. was acquitted of some
    offences and convicted of others. The Crown appeals the acquittals. A.A.
    appeals the convictions. The Crown succeeds. A.A. fails. These reasons explain
    why.

THE BACKGROUND FACTS

[4]

The relevant events span a period of about four months during the summer
    and fall of 2011. The grounds of appeal advanced do not require a lengthy recital
    of the circumstances underlying the alleged offences.

The Principals

[5]

G.M.S. had a troubled relationship with her parents, who were divorced.
    She had a history of anxiety problems. She had been prescribed medication for
    not only anxiety, but also depression and sleep issues. She lived with her
    father and was enrolled in school.

[6]

A.A. lived with his mother and some of his siblings.

The Meeting in the Park

[7]

In August, 2011, A.A. and G.M.S. met in a park. They talked. Soon, they
    discovered a common bond  each had recently suffered the loss of a loved one.
    G.M.S. also complained about her home life. She did not want to live at home
    any longer.

[8]

The discussion turned to dancing. A.A. said that he had heard that
    G.M.S. would be dancing for a mutual friend. G.M.S. responded that those plans
    had been abandoned. A.A. professed his love for G.M.S. He said he had always
    loved her and would never let anything happen to her. A.A. then asked G.M.S.
    whether she loved him and whether she would dance for him.

[9]

A.A. explained that if G.M.S. danced for him they could have the life
    they wanted. They would be together and retire in ten years. G.M.S. felt that
    she had finally found somebody who wanted her and would protect and look after
    her forever.

[10]

At
    the end of their meeting in the park, G.M.S. understood that she and A.A. would
    be together. She agreed to dance in strip clubs so that she and A.A. could have
    their life together.

The Dancing
    Begins

[11]

Shortly
    after the meeting in the park, A.A. wanted G.M.S. to go to a club. G.M.S.
    demurred. She said she was not feeling well. She did not want to start dancing
    immediately.

[12]

A.A.
    and his friend, M.J., took G.M.S. to a store that sold dancer stuff. A.A.
    chose the outfit for G.M.S. M.J. paid for it.

[13]

G.M.S.
    danced first at Pigale, a Gatineau club. A.A. dropped her off at the club. She
    used her older sisters identification. She earned $60 from private dances. She
    also performed on stage but received no money for this.

[14]

A
    booker at the club told G.M.S. to return after she had gained some dancing
    experience. G.M.S. called A.A. to pick her up. When A.A. arrived, G.M.S. gave
    him the $60 she had earned. A.A. said that he was proud of her. He told her:
    you did so good.

The Silver Dollar

[15]

After
    a club refused to accept her identification, A.A. and M.J. took G.M.S. to the
    Silver Dollar. G.M.S. described the Silver Dollar as a disgusting place but
    danced there. During private dances she was asked to remove and did remove her
    top. The patrons touched her. She also danced on stage. At the end of the
    evening, A.A. and M.J. picked her up and drove her home. When she turned over
    her earnings to A.A., he said only $40?.

[16]

For
    the following two weeks, G.M.S. danced at the Silver Dollar every day the club
    was open. A.A. picked her up at home in M.J.s car and drove her to the club.
    She earned $200 to $400 per night. She turned the money over to A.A. who, with
    M.J., picked her up at the club and drove her back to her fathers place. A.A.
    told G.M.S. that he was so happy and that she was doing better and better.

[17]

The
    only time A.A. and G.M.S. spent together was during the drives to and from the
    Silver Dollar.

[18]

About
    two weeks into her tenure at the Silver Dollar, a bouncer told G.M.S. that
    people were skeptical that she was the age shown on her older sisters
    identification. G.M.S. panicked. She was not sure where she would go. She
    needed to work.

[19]

G.M.S.
    told A.A. about her conversation with the bouncer. A.A. promised her new
    identification. They went together to have passport photographs taken. A.A.
    used $600 from G.M.S.s earnings to get her two new sets of identification.

The Barefax
    Deception

[20]

A.A.
    wanted G.M.S. to dance at Barefax, a club she considered an upgrade from the
    Silver Dollar, but not a place she wanted to work. A.A. dropped her off at the
    club. She pretended to enter the club but did not. Instead, she went home. In
    order to get money to give to A.A., as if she had earned it dancing, G.M.S.
    withdrew money from her fathers credit card account.

Dancing in Toronto and Montreal

[21]

A.A.
    and M.J. decided that G.M.S. should go to Montreal and Toronto to become a
    better dancer. M.J. took G.M.S. to Montreal and then to Toronto. In Toronto,
    she earned $2,000, which she gave to M.J. to turn over to A.A. G.M.S. and A.A.
    texted each other daily. A.A. always asked how much she had made. When G.M.S.
    told him, A.A. said good job.

The Failed Exchange

[22]

When
    G.M.S. returned from Toronto with M.J., he explained to her that her situation
    would be improved if she danced for him. M.J. asked her to choose between him
    and A.A. G.M.S. chose A.A. M.J. punched G.M.S. in the face and threw her things
    out of his car. A.A. told G.M.S. to get into the car with another friend,
    Aleck, who would be joining him in picking up and dropping off G.M.S. Aleck had
    a girl, Natasha, who would be working for him.

[23]

After
    the episode with M.J., A.A., G.M.S. and Aleck went to a motel to sleep.

The Motel

[24]

Around
    the end of September, 2011, G.M.S. left home and moved into the motel. Soon,
    Natasha joined her. The nightly routine was for G.M.S. to dance at the Silver
    Dollar and to turn over her earnings, $300 to $600, to A.A. who would pick her
    up and drop her off at the motel. Sometimes, her shifts lasted 14 hours.

[25]

A.A.
    gave G.M.S. money to buy food at Tim Hortons. She and Natasha would deposit the
    change from their meals in a jar in the room at the motel. A.A. would empty the
    jar as it filled and ask are you trying to run away or something?

[26]

G.M.S.
    stayed at the motel when she was not dancing. She severed contact with her
    parents. A.A. told her that he was her family and that she was to stay at the
    motel. She stopped attending school. Aleck and A.A. slept at the motel about
    five times a month.

The Request for Extras

[27]

A.A.
    encouraged G.M.S. to do extras to earn more money. He told her that she
    should charge $100 for a blow job or sex. A customer at the Silver Dollar paid
    her $100 for vaginal sex. She gave the money to A.A.

[28]

A.A.
    also asked G.M.S. to give his cousin a lap dance and have sex with him for $200.
    The cousin was unable to have sex but paid A.A. A.A. told G.M.S. that he needed
    the money to pay for the motel because G.M.S. had only earned $50 that day.

The Physical
    Abuse

[29]

During
    her stay at the motel, A.A. began to hit G.M.S. regularly, often when she
    talked back to him. On her birthday, A.A. hit G.M.S. repeatedly on her head
    with his iPhone.

[30]

A.A.
    and Aleck kept weapons at the motel and also at a house in Gatineau that Aleck
    rented later. The weapons included a paintball gun and several tasers. At A.A.s
    urging, Aleck shot G.M.S. twice with a paintball gun.

The First Return Home

[31]

After
    about a month at the motel and regular dancing at the Silver Dollar, G.M.S.
    learned that A.A. had brought in another girl to do the same thing. G.M.S. left
    the motel. She took a cab to the Silver Dollar. Instead of entering the club,
    she took a bus home. She stayed at home for a week. A.A. phoned several times
    each day. He pleaded for G.M.S. to return.

[32]

G.M.S.
    spoke to A.A. on the telephone. She explained that she left because A.A. had
    two girls working for him. A.A. assured G.M.S. that she was his bottom bitch,
    the one he loved and planned to marry. The other girl, he said, was just for
    extra money. G.M.S. told A.A. to choose between her and the new recruit. A.A.
    said he would choose her.

Back to
    Dancing

[33]

After
    a week at home, G.M.S. returned to A.A. and Aleck. She was convinced that A.A.
    finally realized that she was going to be with him forever and that he was
    going to change and not hurt her. She stayed at Alecks place in Gatineau. She returned
    to dancing immediately. This time, she danced at the Barefax where A.A. thought
    she could earn more money. G.M.S., Natasha and a new girl who worked for Aleck
    slept in sleeping bags on the floor. Aleck and A.A. slept in the bed.

[34]

One
    night, G.M.S. went home on the pretext of a family emergency. A.A. texted her, asking
    her when he could pick her up for work. A.A. told her not to do that again and
    accused her of being a slacker while others, like Natasha, worked. G.M.S.
    returned to the Gatineau house the same night.

The Second Return Home

[35]

In
    mid-November, 2011, G.M.S. got kicked out of the Barefax because she was
    chronically late. She went home and stayed there for a month. She told A.A.
    that her father had died and that she would be receiving an inheritance. She
    and A.A. communicated frequently. A.A. asked G.M.S. repeatedly when she could
    return to work and when she would be getting her inheritance.

[36]

Sometime
    later, G.M.S. told A.A. that she would not be receiving an inheritance. She
    also told him that she realized that he would not want to be with her anymore.
    A.A. told G.M.S. they could stay together but she would have to work again.

[37]

When
    asked why she left in November, G.M.S. explained that, despite his promises,
    A.A. had not changed his ways. He expected her to work long hours to make more
    money and would not allow her to carry her own money because she might use it
    to run away or spend it on stupid stuff.

The End

[38]

A.A.
    wanted G.M.S. to accompany him, Aleck and Natasha to Toronto before Christmas,
    2011. G.M.S. agreed to go. She wanted to see whether A.A. had changed. She also
    wanted to stop Natasha from making the biggest mistake in her life. A.A. told
    G.M.S. that she would make more money dancing in the clubs in Toronto.

[39]

On
    December 28, 2011, Aleck, A.A., G.M.S. and Natasha drove to Toronto in Alecks
    car. Shortly after their arrival at a hotel, G.M.S. realized that nothing had
    changed. Despite promises to the contrary, A.A. hit her several times after she
    teased him about wanting to sleep with Aleck. He hit her hard enough to draw
    blood. A.A. told her that she would have to work the next day.

[40]

Early
    the next morning, G.M.S. texted the police. She told an officer from the Ottawa
    Police Service, with whom she had spoken earlier, that she was scared because
    she was going to have to return to the clubs. Two local police officers met
    G.M.S. outside the hotel and took her back to Ottawa.

[41]

Later
    that morning, the police arrested Aleck and A.A. at the hotel.

THE TRIAL PROCEEDINGS

[42]

A.A.s
    trial took place in Youth Court on an information that contained 16 counts. The
    trial judge found A.A. guilty of two counts of assault with a weapon (including
    one count of counselling Aleck to commit the offence), a single count of
    assault and a single count of failure to comply with an undertaking. The
    principal counts of which A.A. was found not guilty were 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 APPELLATE PROCEEDINGS

[43]

The
    Crown appeals the acquittals of A.A. alleging legal errors in the trial judges
    reasoning. A.A. appeals his convictions on the basis that the trial judges
    findings of fact that led to her conclusions of guilt were flawed.

[44]

I
    will first consider the Crowns appeal from A.A.s acquittals on the counts of trafficking
    of a person under 18 (s. 279.011(1) of the
Criminal Code
, R.S.C. 1985,
    c. C-46), receiving a material benefit from trafficking of a person under 18
    (s. 279.02 of the
Code
) and living on the avails of G.M.S.s
    prostitution (s. 212(2) of the
Code
). While not raised by the parties,
    I will also offer some observations on the relationship between the definition
    of exploitation under s. 279.04 and the purpose requirement under ss. 279.011(1).
    At the conclusion of that discussion, I will turn to A.A.s appeals from his
    convictions of assault, assault with a weapon and breach of an undertaking.

THE APPEAL FROM ACQUITTAL

[45]

Several
    paragraphs in the lengthy reasons of the trial judge provide the background
    essential for an appreciation of the grounds of appeal urged by Crown counsel.

The Findings of the Trial Judge

(a)

Trafficking of a Person under 18 (s. 279.011(1))

[46]

The
    trial judge concluded that the offence of s. 279.011(1) consisted of two
    essential elements:

·

the exercise of control, direction or influence over the
    movements of a person under 18; and

·

the purpose of exploiting or facilitating the exploitation of that
    person under 18.

[47]

The
    trial judge found that the first essential element was proven on the basis that
    A.A. had exercised direction and influence over the movements of G.M.S:

[174] While I am not satisfied the accused exercised control, I
    am satisfied that the Crown has proved beyond a reasonable doubt, the first
    element listed above in that the accused did exercise direction and influence
    over the movements of G.M.S. who was under 18 years of age at the time. I find
    her evidence on these elements to be credible. It is compatible and in harmony
    with the rest of the evidence particularly the text messages which corroborate
    the type of relationship G.M.S. and A.A. had and demonstrate the direction and
    influence he had on her movements.

[48]

The
    trial judge described the second essential element, that of purpose, in these
    terms:

[183] The word exploitation in section 279.011 does not possess
    its general or common definition, which would simply be to use someone in an
    unjust manner. If that was the definition to be applied there is no doubt A.A.
    exploited G.M.S. but in section 279.011 the word has two very specific legal
    definitions: one for providing labour or a service and one for organ or tissue
    removal. It is of course the first one that we are concerned with in this case.
    The labour or service involved is dancing in the clubs.

[184] It requires that a person cause another person 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 the labour or service. It is a very narrow definition
    more so than what is required for organ or tissue removal and more than what is
    required in section 212(1)(h) in regards to prostitution.

[49]

The
    trial judges conclusion on the issue of purpose appears as follows:

[185] I am not satisfied that the Crown has proved that element
    of the offence beyond a reasonable doubt. I am not satisfied that A.A. caused
    G.M.S. to dance by engaging in conduct that in all the circumstances could
    reasonably be expected to cause her to believe that her safety or the safety of
    a person known to her would be threatened if she failed to provide the labour
    or service.

[192] The Court must be satisfied that in all the
    circumstances, A.A.s conduct caused G.M.S. to believe her safety would be
    threatened if she did not dance and while it might, I am not satisfied beyond a
    reasonable doubt that it could reasonably be expected to in these circumstances
    given her evidence outlined above.

[50]

The
    trial judge made the following findings in deciding that A.A.s behaviour did
    not amount to exploitation within the meaning of s. 279.04:

[185] I am not satisfied that the Crown has proved the element
    of the offence beyond a reasonable doubt. I am not satisfied that A.A. caused
    G.M.S. to dance by engaging in conduct that in all the circumstances could
    reasonably be expected to cause her to believe that her safety or the safety of
    a person known to her would be threatened if she failed to provide the labour
    or service.

[186] What A.A. did was use deception, mind games to ensure
    that G.M.S. danced and continued to dance. He preyed on a vulnerable, confused
    young woman, promising her his love and devotion to get her to dance and give
    him the money she made. He made it such that she wanted to please him, she
    wanted him to protect her and to love her. However, I am not satisfied he
    caused her to dance because she believed her safety was threatened if she did
    not.

[187] She explained it when asked if she could leave anytime,
    whenever she wanted. She said, yes he did say I could leave, but it  it was
    more psychological that he kept me.

[188] There is little or no evidence to prove this element
    beyond a reasonable doubt. Her concern for her safety and that of others arises
    when she talks to the police, her fear appears to be related to reprisals for
    speaking to the police not to what would have happened if she did not dance.

[189] She never testified she danced because she believed her
    safety would be threatened, she danced because she was deceived. When asked why
    she danced she said it was that I was having a lot of problems at home and he
    came in saying that he would look after me  Deception may lead to
    exploitation as defined in s. 279.04 but it is not automatic it is but a
    factor.

[51]

While
    the trial judge was satisfied that there were some incidents of violence, she
    found that G.M.S. never related any violence to dancing or not dancing. She concluded
    that while what A.A. did was morally deplorable and was a form of
    exploitation, it did not meet the definition of exploitation under s. 279.04.

(b)

Living on the Avails of Prostitution (s. 212(2))

[52]

A
    single paragraph explains why the trial judge found A.A. not guilty of living
    on the avails of prostitution:

[200] An essential element of the offence is of course that
    G.M.S. was engaged in prostitution. While there is evidence that on one
    occasion, she engaged in an act of prostitution that does [not] make her a
    prostitute. Therefore the presumption that a person who lives with or is
    habitually in the company of a prostitute is in the absence of evidence to the
    contrary, proof that the person lives on the avails of prostitution is not
    applicable in this case. While I accept that she gave A.A. the money from the
    extra that is not sufficient to support a conviction for this offence. A.A.
    is therefore acquitted of count 8.

Ground #1: The Trial Judges Interpretation of Exploitation

[53]

The
    first ground of appeal alleges that the trial judge erred in her interpretation
    and application of the statutory language in s. 279.04, which defines
    exploitation, and that this tainted her analysis on the counts of trafficking
    of a person under 18 and the receipt of a material benefit from that
    trafficking.

The Statutory Provisions

[54]

Section
    279.011(1) defines the trafficking offence in these terms:

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.

[55]

The
    material benefit offence in s. 279.02 provides:

Every person who receives a financial or other
    material benefit, knowing that it results from the commission of an offence
    under subsection 279.01(1) or 279.011(1), is guilty of an indictable offence.

[56]

Section
    279.04(a) describes when one person exploits another. At the time of the
    offences charged, s. 279.04(a) was in these words:

For the purposes of sections 279.01 to 279.03, a
    person exploits another person if they

(a) cause them to provide, or offer to provide,
    labour or 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.

[57]

In
    2012, s. 279.04 was amended to renumber former s. 279.04(a) as s. 279.04(1) and
    add, as s. 279.04(2), an illustrative list of factors to assist in a
    determination of whether one person has exploited another. The new provision is
    in these terms:

(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.

The Definition of Exploitation under
    s. 279.04

(a)

The Arguments on Appeal

[58]

For
    the Crown, Ms. Stephens makes two principal arguments:

i.

the trial judge erred in adopting an unduly narrow interpretation of exploitation
    in s. 279.04, which erroneously excluded consideration of a persons psychological
    security; and

ii.

the trial judge erred in applying a subjective standard in assessing
    exploitation under s. 279.04.

[59]

The
    trial judge, Ms. Stephens says, failed to consider the intention of Parliament
    in enacting s. 279.04. The legislative history of the provision evidences an
    intention that exploitation be interpreted broadly and that it includes a
    consideration of the psychological security of a person. The trial judge also failed
    to consider that a later amendment was not intended to change the law, rather
    only to clarify it. The trial judges interpretation also departed from the prevailing
    jurisprudence and failed to give effect to the presumption of consistent
    expression.

[60]

In
    addition, Ms. Stephens submits the trial judge erred in applying a subjective
    interpretation, rather than an objective standard, in assessing whether there
    was exploitation under s. 279.04. This fails to give effect to the intention of
    Parliament and is inconsistent with the jurisprudence and the approach taken in
    relation to the cognate offence of uttering threats. While the trial judge
    properly stated the test under s. 279.04, she limited her reasons to the
    complainants subjective experiences.

[61]

For
    A.A., Mr. Harbic says the trial judge made no error in her interpretation of exploitation.
    The trial judges characterization of the definition of exploitation under s.
    279.04 as being very narrow simply distinguished the normal, everyday meaning
    of exploitation from the statutory one that appears in s. 279.04. This
    interpretation adhered to rather than departed from Parliaments intention in
    enacting the section and is consistent with the controlling jurisprudence.

[62]

Further,
    Mr. Harbic submits, the trial judge carefully analysed the evidence adduced at
    trial, fully appreciated its substance and effect and concluded that Crown
    counsel had not proven the offences charged. The trial judge correctly applied
    an objective test in determining whether there was exploitation. She also considered
    deception as a factor, but found that it was not dispositive of the issue of
    exploitation, as well as the evidence of coercion and use of force. In the end,
    the trial judge found the case for the Crown wanting. Deference is her due.

(b)

A Question of Law Alone

[63]

Before
    setting out the relevant principles informing this ground of appeal, a brief
    reminder about the Crowns right of appeal from acquittal is apt. Under s.
    676(1)(a) of the
Code
, the Crown is entitled to appeal an acquittal
    provided any ground of appeal raised involves a question of law alone.

[64]

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:
R.
    v. Johnson
, [1975] 2 S.C.R. 160, at p. 171.

[65]

Legal
    error also occurs when a trial judge assesses an item or several items of
    evidence on the basis of an erroneous legal principle:
R. v. H.(J.M.)
,
    2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 29-30. 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:
H.(J.M.)
, at
    para. 39; and
R. v. Powell
, 2010 ONCA 105, 251 C.C.C. (3d) 475, at
    para. 40.

(c)

The Governing Principles

[66]

This
    ground of appeal raises an issue of statutory interpretation.

[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]
    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] 1 S.C.R. 1378, at p.
    1387.

[69]

Finally,
    when a statute is amended by the legislature, we presume that the amendment was
    made for an intelligible purpose, such as clarifying or correcting a mistake in
    the enactment or change in the law: Sullivan, at p. 579. Section 45(2) of the
Interpretation Act
, R.S.C. 1985, c. I-21 makes it clear that an amendment
    is not deemed to involve a declaration that the pre-amendment law was or was
    considered by Parliament to be different from the post-amendment law.

(d)

The Principles Applied

[70]

Section
    279.04 instructs us that one person exploits another if they cause that other
    person to provide labour by doing something that, in all the circumstances,
    could reasonably be expected to cause the other person to believe that their
    safety or the safety of a person known to them would be threatened if they
    failed to provide the labour. On a straight-up reading of this definition of
    exploitation, three conclusions emerge:

i.

the expectation of the specific belief engendered by the accuseds
    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 persons safety need not actually be threatened.

In essence, for there to be exploitation, an accuseds
    conduct must give rise to a reasonable expectation of a particular state of
    mind in the victim.

[71]

In
    addition, and applying the presumption of consistent expression, the term
    safety that appears in s. 279.04 is not limited to the state of being
    protected from physical harm, but also extends to psychological harm: see, for
    example,
R. v. McCraw
, [1991] 3 S.C.R. 72, at p. 81; and
Winko v.
    British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at
    para. 62.

[72]

Further,
    on a plain reading of s. 279.04 as it was at the time of the offence, nothing
    in the language of s. 279.04 excluded deception or other forms of psychological
    pressure from the range of behaviour that satisfies the conduct requirement in
    s. 279.011(1), as well as the applicable portion of the definition of
    exploitation in s. 279.04. While the legislation was later amended to make this
    point more clear, this did not change the law.

[73]

This
    interpretation is consistent with the language of s. 279.04, as well as the
    intention of Parliament in enacting the trafficking provisions. A review of the
    Ministers 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.
[1]

[74]

Here,
    in 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 judges finding that exploitation did not arise was erroneously
    based on the complainants subjective belief as to whether her safety was
    threatened. This ran contrary to the statutory language under s. 279.04.

[75]

This
    is evidenced in paras. 185 to 193 of her reasons, excerpted above, where the
    trial judge considers exclusively what was in the mind of G.M.S. in concluding
    that she was not exploited:

·

She explained it when asked if she could leave anytime, whenever
    she wanted. She said, yes he did say I could leave, but it  it was more
    psychological that he kept me;

·

She never testified she danced because she believed her safety
    would be threatened, she danced because she was deceived;

·

Her concern for her safety appears to be related to reprisals for
    talking to the police, not to what would have happened if she stopped dancing;

·

She never testified she danced because she believed her safety
    would be threatened, she danced because she was deceived; and

·

She never related any violence to dancing or not dancing. She
    said he hit me every day because I would stand up to him.

[76]

While
    the subjective belief of a complainant is not to be entirely cast aside, it is
    also not to be considered to the exclusion of an objective assessment based on
    all the circumstances, as mandated by the statutory language in s. 279.04. The
    trial judge failed to consider any objective factors in arriving at her
    conclusion. For example, she failed to consider how the incidents of assault
    could lead to a finding of exploitation. While the complainant did not link the
    assault to her choice to dance, this does not mean an objective view of the
    evidence would not have permitted such a conclusion. Further, as noted earlier,
    s. 279.04 does not require that the complainants safety actually be threatened
    and safety includes a consideration of psychological safety.

[77]

The
    trial judge applied the wrong legal standard in deciding whether exploitation
    was present on the facts. It follows, in my respectful view, that the
    acquittals on the trafficking and material benefit counts must be set aside. I
    will leave the disposition to be made as a result of these errors to the
    conclusion of my reasons on the Crown appeal.

The Relationship between ss. 279.04
    and 279.011(1)

[78]

While
    the parties did not make any submissions on this issue, the following
    observations on the relationship between ss. 279.04 and the purpose requirement
    under s. 279.011(1) (and, by necessary implication, s. 279.01) are intended to
    provide some guidance to the new trial judge.

[79]

On
    a straightforward reading of s. 279.011(1), three elements need to be
    established by the Crown in order for the offence of trafficking of a person
    under 18 to be made out:

i.

the conduct;

ii.

prohibited group; and

iii.

purpose.

[80]

The
conduct
requirement may be established in several different ways
    including exercising control, direction or influence over the movements of
    another person.

[81]

The
prohibited group
requirement is met where the person who is the
    subject of an accuseds conduct is under 18.

[82]

The
    fault element of the offence consists of two components. First, the intent to
    do anything that satisfies the conduct requirement in s. 279.011(1). Second, the
purpose
for which the conduct in relation to a member of the
    prohibited age group is done. Specifically, s. 279.011(1) requires that the
    accused act with the purpose of exploiting or facilitating the exploitation of
    that person. The purpose element in s. 279.011(1) extends beyond the
    intentional conduct that is the
actus reus
of the offence to what
    could be described as the
object
an accused seeks to attain, or the
reason
for which the conduct is done or the
result
intended.

[83]

A
    plain reading of s. 279.011(1) without any interpretive assistance would
    support the conclusion that the terms exploiting and exploitation would
    bear their normal, natural every day meaning of taking advantage of or using
    another person for ones own ends. However, what is meant by exploiting and
    exploitation in s. 279.011(1) is informed by s. 279.04, a provision that acts
    like a definition.

[84]

While
    s. 279.04 defines exploitation in the context of the offence of human  trafficking,
    the fault element in s. 279.011(1) focusses on an accuseds
purpose
in
    exercising control, direction or influence over the movements of a person in
    the proscribed age group. It is of no moment to proof of this ulterior fault
    element that an accused fails to achieve his purpose.

[85]

In
    other words, no exploitation need actually occur or be facilitated by the
    accuseds conduct for an accused to be convicted of human trafficking. A
    similar point was made by the Quebec Court of Appeal in
R. v. Urizar
,
    2013 QCCA 46, 99 C.R. (6th) 370, at para. 69:

Lélément central des textes législatifs en
    cause est la criminalisation de la notion dexploitation. Les actes mentionnés
    au premier alinéa de larticle 279.01
C.cr.

ne constituent
    des actes criminels que dans la mesure où ils sont posés en vue dexploiter ou
    de faciliter lexploitation de la personne, peu importe qu'une exploitation réelle
    s'ensuive.
[Emphasis added.]

[86]

Thus,
    where human trafficking is a charged offence, the Crown needs to prove  along
    with conduct and the prohibited group  that the accused acted with the
purpose
of exploiting the complainant or facilitating his or her exploitation. The
    Crown does not need to show that exploitation actually occurred. Both
    exploitation and facilitation of exploitation in s. 279.011(1) relate to an
    accuseds state of mind, his or her
purpose
in engaging in prohibited
    conduct. Said in another way, exploitation and safety relate to an accuseds
    purpose and not to the actual consequences of the accuseds behaviour for the
    victim.

[87]

To
    reiterate, in considering whether the offence under s. 279.011(1) is
    established, the analysis does not end at whether there was actual exploitation.
    In cases where exploitation, as defined in s. 279.04, arises from the facts,
    inferring that the accuseds 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 courts analysis of whether the accused was acting
    with the requisite purpose when he or she committed one of the listed acts.
    However, it does not become an essential element of the offence.

[88]

Such
    an interpretation is consistent with a reading of ss. 279.011(1) and 279.04 in
    their entire context and in their grammatical and ordinary sense. The language
    of s. 279.011(1) is clear in that it only requires that the accused perform a
    certain act with the
purpose
of exploiting a person or facilitating their
    exploitation. This interpretation is also consistent with the object of the
    legislative provisions, which was to criminalize a wide range of intentional
    conduct that has, as its purpose, the exploitation of vulnerable persons. This
    is achieved by enjoining preliminary or preparatory conduct, such as
    recruitment, and by prohibiting the destruction or withholding of documents
    that facilitate control over others and the profiting from exploitative
    behaviour.

Ground #2: The Living on the Avails Error

[89]

The
    second ground of appeal advanced by Crown counsel relates only to the count
    that charged A.A. with living on the avails of a single act of prostitution by
    G.M.S. No further references to the evidence are necessary since its essential
    features appear in two paragraphs of the trial judges reasons.

The Reasons of the Trial Judge

[90]

The
    trial judges decision on the count charging living on the avails of
    prostitution appears in the following passages in her reasons:

[199] Count 8 is living wholly or in part on the avails of
    prostitution.

[200] An essential element of the offence is of course that
    G.M.S. was engaged in prostitution. While there is evidence that on one
    occasion, she engaged in an act of prostitution that does [not] make her a
    prostitute. Therefore the presumption that a person who lives with or is
    habitually in the company of a prostitute is in the absence of evidence to the
    contrary, proof that the person lives on the avails of prostitution is not
    applicable in this case. While I accept that she gave A.A. the money from the
    extra that is not sufficient to support a conviction for this offence. A.A.
    is therefore acquitted of count 8.

The Arguments on Appeal

[91]

For
    the appellant, Ms. Stephens points out that the trial judge found that G.M.S.
    engaged in a single act of prostitution  sexual intercourse with a patron at
    the Silver Dollar  for which she received $100. She turned the money over to
    A.A. The trial judge then concluded that a single act of prostitution did not
    trigger the presumption in s. 212(3). It followed, according to the trial judge
    that the single act of prostitution, coupled with delivery of payment to A.A.,
    did not prove the offence.

[92]

Ms.
    Stephens says that a single act of offering ones body for sexual intercourse
    or gratification in return for payment of money can amount to prostitution. The
    trial judge erred in deciding otherwise. In light of the trial judges finding
    of fact, the governing legal principles warrant entry of a conviction on this
    count.

[93]

For
    A.A., Mr. Harbic acknowledges that a single act of sexual intercourse in return
    for payment can amount to an act of prostitution if the trier of fact
    determines the conduct to be of that character. But here the trial judge
    exercised her discretion and had a reasonable doubt about A.A.s guilt. The
    result does not involve a legal error and should not be disturbed.

The
    Governing Principles

[94]

Under
    s. 212(2) of the
Criminal Code
, as it was at the time the alleged
    offence occurred, a person who lives wholly or in part on the avails of the
    prostitution of a person under 18 commits an indictable offence. Under s.
    212(3) evidence that a person lives with or is habitually in the company of a
    prostitute is proof that the person lives on the avails of prostitution, absent
    evidence to the contrary.

[95]

Prostitution
    consists of offering ones body for the purpose of sexual intercourse or other
    sexual gratification in return for payment:
R. v. Di Paola
(1978), 43
    C.C.C. (2d) 199 (Ont. C.A.), at p. 208. To constitute prostitution a course of
    conduct is not required. A single act of the required character will suffice:
Di
    Paola
, at p. 208.

[96]

The
    rebuttable presumption created by s. 212(3) assists the Crown in its proof
    where there is evidence of shared residence or habitual accompaniment by the
    accused with a prostitute. However, the presumption is not a condition
    precedent to conviction. It is merely an evidentiary provision that assists the
    Crown in its proof.

The Principles Applied

[97]

I
    would give effect to this ground of appeal for two reasons.

[98]

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 sixteen years old. She had sexual intercourse with a patron of the
    Silver Dollar. She received $100 in payment for that act of sexual intercourse.
    She turned the money over to A.A., in accordance with their arrangement. Proof
    of each of these elements established an offence under s. 212(2).

[99]

Second,
    the trial judge was correct about the inapplicability of the presumption in s.
    212(3) of the
Criminal Code
. The basic facts necessary to engage the
    presumption, that is that A.A. lived with or was habitually in the company of
    G.M.S. who was a prostitute, which is rebuttable by the introduction of
    evidence to the contrary, were lacking. Whether the presumption applied was
    beside the point. Where applicable, the presumption assists the Crown as proof.
    But the presumption is not an essential element of the offence, i.e. something
    that must be established to prove guilt. The presumption assists the Crown in
    its proof, but its operation is beside the point where proof is made otherwise.

Conclusion: A New Trial is Required

[100]

Section
    686(4)(b) describes the orders an appellate court may make when it allows an
    appeal by the Crown and sets aside a judgment or verdicts of acquittal of a trial
    court in proceedings on indictment. The appellate court may order a new trial
    or, in some circumstances, enter verdicts of guilty.

[101]

To set aside
    acquittals and enter convictions, we must be satisfied that the trial judges
    findings of fact, viewed in light of the applicable law, support a conviction
    for each offence beyond a reasonable doubt:
R. v. Katigbak
, 2011 SCC
    48, [2011] 3 S.C.R. 326, at para. 51;
R. v. McRae
, 2013 SCC 68, [2013]
    3 S.C.R. 931, at para. 39; and
R. v. Cassidy
, [1989] 2 S.C.R. 345, at
    pp. 354-355. The authority to enter convictions is an authority that should be
    exercised only in the clearest of cases:
McRae
, at para. 39; and
R.
    v. Audet
, [1996] 2 S.C.R. 171, at para. 48. The relevant findings of fact
    upon which a conviction may be entered on appeal are those of the trial judge,
    not those of this court:
Katigbak
, at paras. 50-52.

[102]

In this case,
    the trial judge found the conduct requirement in s. 279.011(1) proven beyond a
    reasonable doubt. She found that exploitation had not been proven, but her findings
    on that issue are inextricably linked to her legal error about the nature of
    exploitation required. In light of this legal error, I am unable to say the
    necessary findings of fact have been made to enter convictions in place of the
    acquittals on the trafficking and material benefit counts. At all events, this
    is not the clearest of cases in which to do so.

[103]

The case for
    entering a conviction on the living on the avails count is more formidable,
    although the trial judges findings of fact seem to stop at A.A.s receipt of
    the payment for a single act of prostitution. That said, it seems more in
    harmony with the interests of justice to have all these counts on which
    acquittals were entered considered together afresh by a single trier of fact.

THE APPEAL FROM CONVICTION

[104]

A.A. appeals his
    convictions of assault with a weapon, counselling another to commit assault
    with a weapon, assault and breach of an undertaking. He advances three grounds
    of appeal. None require any further factual background. A brief canvass of how
    the trial judge approached her task is enough to provide context for the
    discussion that follows.

The Reasons of the Trial Judge

[105]

In general
    terms, the trial judge found G.M.S. was a credible witness and her testimony
    reliable, apart from her exaggeration of the number of assaults inflicted upon
    her by A.A. She accepted her evidence:

[165] There are other issues surrounding her credibility which
    I will address when dealing with each offence, however despite some concerns I
    found her overall to be credible and I accept her evidence concerning her
    relationship with A.A., her dancing, and his actions and remarks toward her in
    relation to her dancing. Her evidence accords with the circumstances and other
    evidence in this case. It is plausible, reasonable and conforms with the other
    evidence. It is corroborated by the texts and facebook messages and is in large
    part consistent with A.A.[s] own evidence. While A.A.s explanation for his
    reaction following G.M.S. being upset about Mariana is not plausible given his
    other evidence, his reaction is entirely consistent and plausible given
    G.M.S.s evidence about their relationship. His concern was not for her well
    being but rather the prospect of losing her income.

[106]

After making
    this threshold finding about the credibility of G.M.S. and the reliability of
    her evidence, the trial judge considered and rejected several specific
    complaints advanced by trial counsel concerning the adequacy and objectivity of
    the police investigation. She then proceeded with a count by count analysis of
    the allegations.

The Grounds
    of Appeal

[107]

A.A. advances
    three grounds of appeal. The first two grounds allege errors in the trial
    judges assessment of the credibility of G.M.S. and the reliability of her
    evidence. I would paraphrase those complaints as submissions that the trial
    judge erred in:

i.

failing to undertake a proper analysis and to appreciate the
    inconsistencies in the testimony of G.M.S.; and

ii.

relying too much on the demeanour of G.M.S as a witness in finding her
    credible and her testimony reliable.

The third ground of appeal is that the convictions are
    unreasonable.

Ground #1: Inadequate Appreciation and Analysis of
    Inconsistencies in the Complainants Evidence

[108]

The first ground
    of appeal focusses on the trial judges treatment of inconsistencies in the
    testimony of G.M.S. The complaint is not, as I understand it, that the trial
    judge failed to take these inconsistencies into account. Rather, the claim is that
    she failed to analyze them fully and to appreciate their overall impact on
    G.M.S.s credibility and the reliability of her testimony.

The Reasons of the Trial Judge

[109]

The trial judge
    began her lengthy reasons, which she delivered about one month after final
    argument, with a witness-by-witness recapitulation of the evidence adduced at
    trial. She then turned to an analysis of the credibility of the principal
    witnesses, including G.M.S. and A.A.. The trial judge, relying on authority
    from this court, approached her task with two principles in mind:

i.

that the most valuable means of assessing the credibility of a crucial
    witness is to examine the consistency between the witnesses sworn testimony at
    trial and what she said on other occasions, whether under oath or unsworn, and

ii.

that the credibility of interested witnesses cannot be gauged solely by
    the test that the personal demeanour of the witness carried conviction of the
    truth.

[110]

The trial judge
    then turned to the testimony of A.A. and noted several problems with it.
    Internal and external inconsistencies. Implausibilities. The judge illustrated
    each by specific evidentiary references. The trial judge did not believe A.A.
    His evidence did not raise a reasonable doubt about his guilt.

[111]

After rejecting
    the testimony of A.A., the trial judge devoted several paragraphs of her
    reasons to a consideration of the specific complaints about the evidence of
    G.M.S. advanced by trial counsel:

i.

exaggerations;

ii.

internal inconsistencies;

iii.

motive to lie; and

iv.

the absence of confirmatory physical evidence.

[112]

It was only
    after her consideration and analysis of the specific issues raised by counsel
    for A.A. that the trial judge accepted G.M.S.s evidence.

The Arguments on Appeal

[113]

For A.A., Mr.
    Harbic contends that the trial judge ignored or minimized several
    inconsistencies in the testimony of G.M.S. or between her testimony and the
    evidence of other witnesses. These included G.M.S.s evidence about her relationship
    with her former boyfriend Ahmed, her withdrawal of money from her fathers
    credit card account, her exaggeration of the amounts of money she earned
    dancing, the number of persons present in a motor vehicle when she claimed to
    have been tasered and the absence of any noise complaints at the motel. Mr.
    Harbic submits that the failure of the trial judge to deal with or appreciate
    the significance of these inconsistencies flawed her credibility/reliability
    analysis and compromised the convictions she recorded.

[114]

For the Crown,
    Ms. Stephens characterizes the complaint as a challenge to the adequacy of the
    trial judges reasons. In the end, Ms. Stephens says, the issue is whether the
    reasons are so deficient that they foreclose meaningful appellate review. These
    reasons cannot be so characterized.

[115]

Ms. Stephens
    points out that this case turned on the credibility and reliability of G.M.S
    and A.A. The trial judges findings on these issues are entitled to deference
    and the sufficiency of her reasons must be assessed in that light. To determine
    whether the reasons were sufficient or fell short, we should consider what the
    judge said in the context of the record, the issues in play and the submissions
    of trial counsel. The trial judge seized the substance of the case and
    explained the basis for her decision in unexceptionable terms.

The Governing Principles

[116]

Several basic
    principles govern our review of the sufficiency of the reasons delivered at the
    conclusion of proceedings in which the credibility and reliability of the
    testimony of the principal witnesses is the focal point.

[117]

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:
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at
    para. 55;
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para.
    25; and
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10.

[118]

Second,
    credibility determinations attract a high degree of deference on appellate
    review:
Dinardo
, at para. 26;
Vuradin
, at para. 11;
R. v.
    Wadforth
, 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 66; and
R. v.
    M.(O.)
, 2014 ONCA 503, 313 C.C.C. (3d) 5, at para. 19.

[119]

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:
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16;
    and
Vuradin
, at para. 12.

[120]

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:
R.E.M.
, at paras. 32 and 64;
Dinardo
, at para.
    30;
Vuradin
, at para. 17; and
M.(O.)
, at para. 28.

[121]

Fifth, we accord
    significant deference to a trial judges 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:
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621,
    at para. 20; and
M.(O.)
, at para. 19.

The Principles Applied

[122]

For several
    reasons, I would not accede to this ground of appeal.

[123]

First, adopting
    a functional approach to the complaint of inadequacy, the argument advanced
    alleges deficiencies in the trial judges analysis of issues of credibility and
    reliability. The trial judges determination on both these issues is entitled
    to substantial deference in this court.

[124]

Second, counsel
    for A.A. acknowledges that the trial judge did consider internal and external
    inconsistencies in the testimony of G.M.S. and their impact on her credibility
    and the reliability of her testimony. Disagreement with the weight assigned
    does not ascend to the level of palpable and overriding error. Nor does the
    failure to consider inconsistencies on the periphery compel intervention in the
    absence of any obligation to consider and respond to each claim no matter how
    distant from the core issues in the case.

[125]

Third, the trial
    judge considered several specific complaints advanced by trial counsel and
    explained why she rejected them. The further catalogue of issues raised on
    appeal were not argued at trial, perhaps affording the best evidence of their
    inconsequential impact.

[126]

Finally, the
    arguments advanced approach an invitation to retry the case by recalibrating
    the weight to be assigned to the evidence the trial judge saw and heard in a
    court that sits at one remove from those advantages. We lack that authority.

Ground #2: Overemphasis on
    Demeanour

[127]

The second
    ground of appeal also focusses on what is said to be a flaw in the fact-finding
    by the trial judge which led to erroneous findings of guilt.

The Reasons
    of the Trial Judge

[128]

The trial judge
    began her reasons on the issues of credibility and reliability with a
    self-reminder of the governing principles including the impact of demeanour on
    the decision. The self-instructions appear in paragraph 128 of the trial
    judges reasons and are summarized in paragraph 109 of these reasons.

The Arguments on Appeal

[129]

For A.A., Mr.
    Harbic argues that the trial judge decided credibility entirely on the basis of
    G.M.S.s demeanour in the witness box. Demeanour, he argues, is not sufficient
    to ground a conviction where there are significant inconsistencies in testimony
    and conflicting evidence.

[130]

Ms. Stephens,
    for the Crown, submits that a witnesss demeanour can be relevant to
    credibility. In this case, the trial judges findings on credibility were
    rooted in multiple factors: consistencies in the evidence, common human
    experience and, to a lesser extent, demeanour.

The
    Governing Principles

[131]

It is beyond
    dispute that demeanour is a factor the trier of fact is entitled to consider in
    assessing the credibility of witnesses and the reliability of their testimony:
R.
    v. N.S.
, 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and 26; and
R.
    v. François
, [1994] 2 S.C.R. 827, at pp. 835-836.

[132]

On the other
    hand, it is equally well settled that a witnesss demeanour cannot become the
    exclusive determinant of his or her credibility or of the reliability of his or
    her evidence:
R. v. Norman
(1993), 16 O.R. (3d) 295 (C.A.), at pp. 311-315.

The Principles Applied

[133]

I would reject
    this ground of appeal.

[134]

The trial judge
    accurately captured the role of demeanour in the assessment of the credibility
    of witnesses and the reliability of their evidence. A review of her reasons,
    taken as a whole in the context of the evidence adduced and the arguments and
    positions advanced at trial, belies any suggestion of overemphasis on demeanour
    in her analysis. The findings are firmly rooted in a consideration of a number
    of factors, including consistencies/inconsistencies in testimony, common human
    experience, inherent plausibilities and demeanour. No special place was
    assigned to demeanour.

Ground #3: Unreasonable
    Verdicts

[135]

The final ground
    of appeal against conviction is that the convictions recorded at trial are
    unreasonable.

The
    Arguments on Appeal

[136]

For A.A., Mr.
    Harbic says that for findings of guilt to be reasonable, the evidence must
    reasonably and objectively support the findings. Here, Mr. Harbic contends,
    several factors coalesced to taint the findings: the nature and extent of the
    frailties in the evidence of G.M.S; the failure of the trial judge to
    understand and properly apply the evidence; and the inherent improbability that
    events unfolded as G.M.S. claimed. The results, according to Mr. Harbic, were
    conclusions of guilt that no reasonable trier of fact could have reached acting
    judicially.

[137]

For the Crown,
    Ms. Stephens acknowledges the standard to be applied is whether the verdicts
    were ones that a properly instructed jury, acting judicially, could reasonably
    have rendered. Where the challenge is based on what is said to be an improper
    assessment of a witnesss credibility, Ms. Stephens says, we owe and should
    accord great deference to the findings made at trial. Here, the verdicts were
    reasonable. The trial judge, as she was entitled to do, found G.M.S. credible
    and her evidence reliable. That evidence was subject to close scrutiny by the
    trial judge and fully supported her conclusions.

The Governing Principles

[138]

Four brief
    points should be made about the principles at work when findings of guilt are
    challenged as unreasonable.

[139]

First, the test
    or standard applicable is whether the verdict is one that a properly instructed
    jury, acting judicially, could reasonably have rendered:
R. v. Yebes
,
    [1987] 2 S.C.R. 168, at p. 185;
R. v. Biniaris
, 2000 SCC 15, [2000] 1
    S.C.R. 381, at para. 36; and
R. v. Beaudry
, 2007 SCC 5, [2007] 1
    S.C.R. 190, at para. 55.

[140]

Second, the test
    for unreasonableness imports not only an objective assessment, but also a
    subjective one. We must determine what verdict a reasonable jury, properly
    instructed, could judicially reach, and in doing so, review, analyze and,
    within the limits of appellate disadvantage, weigh the evidence:
Biniaris
,
    at para. 36.

[141]

Third, when a
    claim of unreasonableness is advanced in a case tried without a jury, the test
    of unreasonableness remains the same. Appellate intervention is necessary where
    the reasons of the trial judge disclose that:

i.

the judge was not alive to an applicable legal principle; or

ii.

the judge entered a verdict inconsistent with the factual conclusions
    the judge had reached.

See
Biniaris
, at para. 37.

[142]

A verdict is not
    necessarily unreasonable because a trial judge has erred in his or her
    analysis:
Beaudry
, at para. 58. The review must go further. The court
    must determine whether the
verdict
is unreasonable. To do so, the
    court must consider
all
the evidence:
Beaudry
, at para. 58;
    and
R. v. A.G.
, 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 6.

[143]

Finally, in its
    application of the unreasonable verdict test to a decision rendered by a judge
    sitting without a jury, an appellate court must accord great deference to the
    trial judges assessment of the witnesses credibility:
R. v. W.H.
,
    2013 SCC 22, [2013] 2 S.C.R. 180, at para. 30; and
R. v. W.(R.)
,
    [1992] 2 S.C.R. 122, at p. 131. A verdict anchored in an assessment of
    credibility is only unreasonable if the trial courts assessment of credibility
    cannot be supported on
any
reasonable view of the evidence:
W.H.
,
    at para. 34.

The Principles Applied

[144]

This ground of
    appeal fails for three reasons.

[145]

First, great
    deference is due to the credibility/reliability findings of the trial judge and
    her conclusions as to the adequacy of the case for the Crown to satisfy the
    standard of proof. The trial judges assessments fall well within a reasonable
    view of the evidence. The mixed conclusions reflect a reasoned analysis of the
    totality of the evidence.

[146]

Second, A.A. has
    failed to demonstrate any error in the legal principles identified and applied
    by the trial judge in her analysis of the evidence on these counts and, in
    particular, the credibility/reliability issue.

[147]

Third, the
    conclusions reached by the trial judge in finding guilt are consistent with her
    factual conclusions about the credibility of the witnesses and the reliability
    of their evidence. A.A.s attempt to persuade us otherwise fails.

CONCLUSION

[148]

In the result, I
    would allow the Crowns appeal from the acquittals on the human trafficking,
    material benefit and living on the avails charges, set aside those acquittals
    and order a new trial on those counts. I would dismiss A.A.s appeal from his
    convictions.

Released: July 29, 2015 (DW)

David
    Watt J.A.

I
    agree K. van Rensburg J.A.

I
    agree G. Pardu J.A.

[1]
For example, see
House of Commons Debates
, 38th Parl., 1st Sess., No.
    125 (26 September 2005) at pp. 1255-1310 (Richard Marceau) and pp. 1640-1705
    (Christiane Gagnon);
House of Commons Debates
, 38th Parl., 1
st
Sess., No. 135 (17
    October 2005) at pp. 1540-1555 (Hon. Irwin Cotler);

House of
    Commons Debates
, 41st Parl., 1st Sess., No. 36 (25 October 2011) at pp. 1715-1730
    (Joy Smith) and pp. 1750-1800 (Robert Goguen);
House of Common Debates
,
    41st Parl., 1st Sess., No. 112 (27 April 2012), at pp. 1405-1420 (Laurin Liu).


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Abdullahi, 2015 ONCA 549

DATE: 20150727

DOCKET:
C57432

Doherty, Gillese and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Abdullahi

Appellant

Carlos Rippell, for the appellant

Roger Shallow, for the respondent

Heard:  July 21, 2015

On appeal from the conviction entered by Justice Michael
    G. Quigley of the Superior Court of Justice on July 13, 2012 and the sentence
    imposed on October 1, 2012.

By the Court:

THE conviction apppeal

[1]

This was a one-issue case, did the Crown prove beyond a reasonable doubt
    that the appellant was in possession of the handgun as alleged by the police
    witnesses?  The appellant testified and denied that he was in possession of the
    gun.

[2]

Counsel for the appellant alleged several misapprehensions of the
    evidence by the trial judge.  He submits that these misapprehensions played a
    central role in the trial judges rejection of the appellants evidence as
    untrue and incapable of leaving the trial judge with a reasonable doubt.  The
    appeal focused on the trial judges reasons for rejecting the appellants
    evidence, as articulated at para. 55 of his reasons.

[3]

The trial judge set out six reasons for rejecting the appellants
    evidence.  One of those reasons reveals a misapprehension of the evidence.  The
    trial judge found the appellant incredible in part because, on the trial
    judges understanding, the appellant had denied ever seeing cocaine in the
    apartment, even after he was arrested.  Contrary to the trial judges
    understanding, the appellant had denied seeing cocaine in the apartment before
    the police arrived, but acknowledged seeing the cocaine after he was arrested
    and seated in the living room.

[4]

In addition to that one factual error, the trial judge mischaracterized,
    to some degree, the appellants evidence on cross-examination when asked about
    the floor in the bedroom.  The trial judge described the appellant as reluctant
    to admit that the bedroom floor was tiled.  The tiling on the floor was of some
    significance because the officer had testified that he heard the gun hit the
    floor when it was dropped by the appellant.  Our review of the relevant part of
    the cross-examination suggests a disagreement between the Crown and the
    appellant that was more semantical than substantial.  The appellant readily
    admitted that the floor was made of a hard substance.  It was that feature of
    the flooring that was important to the credibility of the officers evidence.

[5]

We do not accept counsels submissions that any of the other four
    reasons advanced by the trial judge for rejecting the appellants evidence are
    also tainted by factual error.  Those reasons are firmly rooted in the record.

[6]

In deciding whether a misapprehension of the evidence requires that a
    conviction be quashed, the court must test the misapprehension against a
    stringent standard.  Misapprehensions of the evidence merit reversal if they
    are material in that they play an essential role in the reasoning process that
    led to the conviction.  In determining the materiality of a misapprehension,
    the court will have regard to the entirety of the reasons and the evidence as a
    whole:
R. v. Lohrer
, 2004 SCC 80.

[7]

In this case, two factors compel the conclusion that the trial judges
    misapprehension of the evidence and arguable mischaracterization of a part of
    the appellants cross-examination do not constitute a material misapprehension
    requiring reversal.  First, the verdict was not based only on the rejection of
    the appellants evidence, but also on the finding that the Crowns evidence
    established the case beyond a reasonable doubt.  This was a strong case for the
    Crown.  One of the three officers who testified (Officer Hoeller) confirmed
    crucial evidence given by Officer Wallace who gave direct evidence of the
    appellants possession of the handgun.  Officer Hoellers credibility was not
    challenged at trial.

[8]

Second, the other reasons given by the trial judge for rejecting the
    appellants evidence are cogent and go more directly to the appellants
    credibility on the central factual issue at trial.  For example, the trial
    judges analysis of the appellants evidence about his activities in the
    bedroom before the arrival of the police and his reaction to the arrival of the
    police was rejected as entirely incredible.  The trial judges analysis of that
    part of the appellants evidence is without error and goes much more directly
    to his credibility on the question of his possession of the gun than does his
    evidence about whether he ever saw cocaine in the apartment.

[9]

Taking the trial judges reasons for rejecting the appellants evidence
    as a whole, we are satisfied that his assessment of the appellants credibility
    would not have been any different had he not made the errors identified above.
    The appellant has not met the onus of demonstrating that the misapprehension of
    appellants evidence about seeing cocaine in the apartment, even combined with the
    relatively benign mischaracterization of a portion of the appellants cross-examination,
    played an essential role in the reasoning process that led to the appellants
    conviction:  see
R. v. M.M.C.
, 2014 ONCA 307.

[10]

In
    addition to the alleged specific misapprehensions of evidence, counsel for the appellant
    also referred to passages from the reasons for judgment, which he argued showed
    that the trial judge did not properly apply the burden of proof despite the
    trial judges specific references to the appropriate authorities.  Some of the
    passages identified by counsel are concerning.  However, placing those passages
    in the context of the entire reasons, we are not satisfied that they reveal legal
    error.  Considered as a whole, the reasons reflect a proper application of the criminal
    burden of proof and are distinguishable on that basis from the reasons given by
    the same trial judge in an earlier case in which he used some of the same
    unfortunate language:  see
R. v. A.P.
, 2013 ONCA 344.

the sentence appeal

[11]

The
    appellant also appeals sentence.  The trial judge imposed the following
    sentences:

·

Count 1:  Possession of a loaded restricted firearm (s. 95(1)):
    4 years;

·

Count 3:  Possession of a firearm knowing its possession is
    unauthorized (s. 92(1)):  1 year consecutive to the s. 95(1) charge; and

·

Counts 4 and 5:  Possession of a firearm and possession of
    ammunition while prohibited:  1 year consecutive to the s. 95(1) and s. 92(1)
    sentences, but concurrent to each other.

[12]

The
    trial judge imposed a total sentence of six years.  The appellant had spent 520
    days in presentence custody.  The trial judge gave 1.5:1 credit for 72 of those
    days on the basis that the appellant was held in very crowded conditions during
    that time period.  He gave the appellant 1:1 credit for the remaining
    presentence custody.  In the result, the appellant received 18 ½ months credit
    for presentence custody, resulting in an effective sentence of four years, five
    and one-half months.

(i)

Should the sentence on count 3 be concurrent?

[13]

The
    appellant submits that the trial judge erred in principle in imposing a
    one-year consecutive sentence on count 3, the charge under s. 92(1).  He
    submits that the possession underlying count 3 was indistinguishable from the
    possession underlying count 1 (the s. 95(1) charge) and that while the added
mens
    rea
requirement justified a separate conviction, it did not justify a
    consecutive sentence.

[14]

The
    Crown concedes that the one-year sentence on the s. 92(1) charge should have
    been concurrent to the sentence imposed on the s. 95(1) charge.  Crown counsel submits,
    however, that we should increase the sentence on the s. 95(1) to five years so
    as to maintain the total sentence imposed by the trial judge.

[15]

We
    see no reason to interfere with the sentence imposed by the trial judge on the
    s. 95(1) charge.  While the trial judge did have an eye toward the totality of
    the sentences imposed, he imposed the additional one-year sentence on the s.
    92(1) charge because of what he perceived to be the added
mens rea
component.  That distinction does not warrant a consecutive sentence.  Nor can
    it justify increasing the otherwise appropriate sentence imposed on the s.
    95(1) charge.

(ii)

The credit for presentence custody

[16]

The
    trial judge did not have the benefit of the Supreme Court of Canadas decision
    in
R. v. Summers
, 2014 SCC 26 when considering the credit the
    appellant should receive for his presentence custody.  It is appropriate that
    this court reconsider the trial judges assessment in the light of
Summers
.
    As explained in
Summers
, s. 719(3.1) caps credit for presentence
    incarceration at 1.5:1.  In determining the appropriate credit:

Judges should continue to assign credit on the basis of the
    quantitative rationale, to account for lost eligibility for early release and
    parole during presentence custody, and the qualitative rationale, to account
    for the relative harshness of the conditions in detention centres. [para. 70].

[17]

The
    trial judge applied the qualitative rationale in giving the appellant 1.5:1
    credit for the 72 days he was required to share a cell with two other persons.
    We accept that part of his analysis.  The trial judge did not separately
    address the quantitative rationale.

[18]

As
    observed in
Summers
, at para. 71, the quantitative rationale, that is loss
    of eligibility for early release and parole, will generally be a sufficient
    basis upon which to award credit at 1.5:1.  The credit is not, however,
    automatic.  If the circumstances of a specific offender render the possibility
    of early release or parole highly unlikely, then a trial judge can adjust, or even
    refuse enhanced credit:
Summers
,
at paras. 71, 79;
R. v. Nelson
, 2014 OJ. No. 5729, at para. 51-53.

[19]

To
    assist in the proper application of
Summers
, this court received a
    report from the Ministry of the Solicitor General and Correctional Services outlining
    the appellants conduct since his incarceration of these charges.  His conduct
    could hardly be worse.  Unfortunately, his conduct since incarceration clearly
    demonstrates that he continues to engage in serious criminal and anti-social
    conduct even while in custody.  There is no realistic possibility that the
    appellant will be given any form of early release or parole.  Applying the
    quantitative rationale underlying enhanced credit for presentence custody, the
    appellant is not entitled to any credit beyond 1:1 credit.

[20]

The
    approach to presentence custody dictated by
Summers
leads to the same
    conclusion as was reached by the trial judge.  We would not interfere with the
    trial judges determination as to the appropriate credit for presentence
    custody.

(iii)

The proper sentence

In summary, leave to appeal sentence is granted and the
    sentence is varied by making the one-year sentence imposed on the s. 92(1)
    charge (count 3) concurrent to the four-year sentence imposed on the s. 95(1)
    charge (count 1).  The one-year sentences on the possession of firearm and
    ammunition while prohibited (counts 4 and 5) are unchanged.  Those sentences
    are consecutive to the four-year sentence imposed on count 1, but concurrent to
    each other.  In the result, the total sentence is reduced from six years to
    five years or 60 months.  The 18 and one-half months credited for pretrial
    custody must be deducted from the 60 months, yielding an effective sentence of
    41 and one-half months.

RELEASED:  DD  JUL 27 2015

Doherty J.A.

E.E.
    Gillese J.A.

David
    Brown J.A.