2011 QCCA 771, 2011 QCCA 771

Pointejour Salomon c. R. 2011 QCCA 771 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL NO: 500-10-004322-093 (500-01-004699-051) DATE: APRIL 20, 2011 CORAM : THE HONOURABLE FRANCE THIBAULT, J.A. JACQUES DUFRESNE, J.A. GUY COURNOYER, J.A. (AD HOC) JACQUY POINTEJOUR SALOMON APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] On appeal from a decision of the Court of Quebec, Criminal Division, District of Montreal (the Honourable Michel Bellehumeur), rendered on December 8, 2008, that found the appellant guilty of four counts related to procuring; [ 2 ] Having examined the file, heard the parties and on the whole deliberated; [ 3 ] For the reasons of Cournoyer, J.A., with which Thibault and Dufresne, JJ.A. agree: [ 4 ] DISMISSES the appeal. FRANCE THIBAULT, J.A. JACQUES DUFRESNE, J.A.

GUY COURNOYER, J.A. (AD HOC) Mtre Louis Huot Montreal Legal Aid For the appellant Mtre Thierry Nadon Criminal and penal prosecutor For the respondent Date of hearing: October 21, 2010 REASONS OF COURNOYER, J.A. [ 5 ] The appellant appeals a decision of the Court of Quebec, Criminal and Penal Division (the Honourable Michel Bellehumeur), rendered on December 8, 2008, [1] that found him guilty of the following counts: [ translation ]

1. Between February 15, 2004, and February 26, 2004, at City A, District of Montreal, and at City B, District of Bedford, did use violence, intimidation or coercion on X, did attempt or threaten to do so and did aid, abet or compel her to engage in or carry on prostitution or counsel her to do so, in addition to living on the avails of prostitution of X (…, 1988), a person under the age of eighteen years, thereby committing an indictable offence under subsection 212(2.1) of the Criminal Code . 2.

Between February 15, 2004, and February 26, 2004, at City A, District of Montreal, and at City B, District of Bedford, did apply or administer or make X consume drugs, that is, cannabis and crack cocaine, with the intent to stupefy or overpower her to enable any person to have illicit sexual intercourse with her, thereby committing an indictable offence under paragraph 212(1) (

i) of the Criminal Code . 3. Between February 15, 2004, and February 26, 2004, at City A, District of Montreal, and at City B, District of Bedford, did inveigle or entice X, who was not a prostitute, to a common bawdy house for the purpose of illicit sexual intercourse or prostitution, thereby committing an indictable offence under paragraph 212(1) (

b) of the Criminal Code . 4. Between February 15, 2004, and February 26, 2004, at City A, District of Montreal, and at City B, District of Bedford, did procure or attempt to procure a person to prostitute herself, thereby committing an indictable offence under paragraph 212(1) (

d) of the Criminal Code . [ 6 ] The appellant was incarcerated the same day. On December 19, 2008, the trial judge sentenced him to the minimum five- year prison term under subsection 212(2.1) of the Criminal Code minus time already served.

This is one of the five-year minimum sentences provided under the Criminal Code. [2] [ 7 ] Concurrent three-year prison sentences were imposed on the other three counts. [ 8 ] On March 10, 2009, the appellant was released pending the Court’s final judgment. [3] [ 9 ] The appellant claims several grounds for appeal that I propose to group into categories and consider in the following order: 1) The trial judge failed to address the contradictions, improbabilities and inaccuracies in the complainant’s testimony and assessed her credibility using an inadequate criterion in relation to her age; 2) The judge failed to provide reasons for the verdicts on each count; 3) The judge drew certain conclusions of fact in the complete absence of evidence. [ 10 ] Although the grounds are distinct, the issue concerning the judge’s reasons is the cornerstone of the appellant’s grounds for appeal. [ 11 ] For the reasons below, I believe it is possible to explain why the trial judge delivered guilty verdicts and that the appeal should be dismissed.

I – The facts [ 12 ] According to the facts accepted by the judge, X met the appellant just after she turned sixteen years old. She took drugs, ate, and drank at the appellant’s expense, who asked her to pay him back. [ 13 ] To this end, the appellant urged her to dance in a bar, to have sexual intercourse with a businessman, and to dance and have full sexual intercourse with clients in a second bar. The appellant was generally present during these evenings and took the money she earned. [ 14 ] X fled after having lived with the appellant for eleven days.

II – The trial judgment [ 15 ] The appellant alleges that the trial judge failed to provide reasons for the verdicts on each count when he had a duty to do so. To better understand this ground for appeal, the judge’s conclusions are reproduced here: [ translation ] [75] After analyzing all the evidence accepted, believed by the Court and not contradicted, I find the following: (

a) After the accused and the man named Chico had amused themselves with the young victim’s body while abusing drugs, he took her to the apartment of a prostitute named Alexandra; (

b) As of the first day, the accused managed to make the young alleged victim, then aged sixteen, feel indebted to him so she would dance and prostitute herself. (

c) The accused encouraged the alleged victim to prostitute herself and to perform these types of actions in Bar A and in Bar B; (

d) The accused insisted and urged the alleged victim to call the businessman who had given her his contact information directly so she could engage in prostitution; (

e) The accused chose all the places the alleged victim went to during the period under review in this case. After Bar A, he suggested Bar B. “You’ll make more money,” he said. He knew that this place was a common bawdy-house and place of prostitution where illicit sexual intercourse often occurred. Dancing, fellatio, masturbation and full service were all offered for a price;

(

f) The accused led X, who was not a prostitute, to Bar B, a common bawdy-house, so she could have illicit sexual intercourse for moremoney. (

g) The accused was frequently present when the alleged victim performed and danced in the bars; (

h) The accused monitored or had X monitored while she worked. The evidence demonstrates that she was more closely monitored atBar B. (

i) The accused took the money earned by the young alleged victim. He took great interest in the money she made. Indeed, there waseven evidence introduced showing that he was angry one evening because X had left Bar A without being paid by the last client. (

j) Marijuana and crack were consumed daily. The accused knew and encouraged it. “Take this, you’ll feel less ashamed,” he repeated.Less ashamed, the young alleged victim was more at ease having illicit sexual intercourse with clients. (

k) The accused’s attitude, his verbal and physical violence (punching the victim’s shoulder), his displaying of a knife, and his presencethroughout this period resulted in his will being imposed so that X prostituted herself. [76] All this evidence, taken with the testimony of Ms.

Marie-Hélène Brunet and Sergeant Detective Nathalie Morin, has persuadedthe Court beyond a reasonable doubt that the accused, Jacquy Pointejour Salomon, committed the offences charged. [77] This is why the Court finds the accused, Jacquy Pointejour Salomon, guilty on counts 1, 2, 3 and 4 as charged in theindictment. [16] According to the appellant, because the judge failed to explain which evidence was related to which count, it is an arduoustask to formulate grounds for appeal given the complexity of the case.

It is difficult to understand why the judge arrived at the guiltyverdicts. [17] We note the trial judge did not render a specific verdict on each count. The issue here is whether it was necessary to do so inthis case. III – The principles [18] In R. v.

R.E.M.,[4] McLachlin, J. explains that the sufficiency of reasons must be assessed in light of the issues in dispute: It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, thearguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and50; R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 524). These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did.

The object is not to show howthe judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. Thedecision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard. But the description in Morrissey of the object of a trial judge’s reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: “Ingiving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made thatdecision” (emphasis added).

What is required is a logical connection between the “what” — the verdict — and the “why” — the basisfor the verdict. The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, thesubmissions of counsel and the history of how the trial unfolded.[5] [Emphasis added] [19] Binnie, J. formulates the same principle in R. v. Walker:[6] Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments.

Their sufficiency should bemeasured not in the abstract, but as they respond to the substance of what was in issue.[7] [20] Furthermore, as Binnie, J. observed in R. v. G.R.,[8] the charge guarantees a fair trial: It is fundamental to a fair trial that an accused knows the charge or charges he or she must meet.

The proper focus is on what the Crownalleges, not on what the accused already knows.[9] [21] Thus, the issues on trial are, first and foremost, defined in the charge. [22] In certain cases, the relationship between the charge as a means of ensuring a fair trial and the trial judge’s duty to providereasons requires that the judgment explain the basis of the verdict for each count laid.

In certain circumstances, such as those in thepresent case, the sufficiency of the reasons must be appreciated in light of all the counts. [23] This requirement is desirable from the point of view of both the accused and the prosecution. Indeed, as Binnie, J. explains inR. v.

G.R.: The Crown too must be able to know with clarity after an acquittal what further charges may be laid, if any, without confronting thedefence of autrefois acquit or autrefois convict ….[10] [24] The conclusion that the trial judge must, in certain circumstances, explain the basis for the verdict on each count does notresolve the issue raised by the appellant. [25] Indeed, “deficiency in reasons, by itself, is not a stand-alone ground of appeal.”[11]

[ 26 ] Above all, it should be remembered that “the trial judge need not expound on evidence which is uncontroversial, or detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned.” [12] [ 27 ] In R.E.M. , McLachlin, J. describes the role of an appellate court when the insufficiency of reasons is in issue: In

summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading 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 ( see Sheppard , at paras. 46 and 50 ; Morrissey , at p. 524).

(2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at the verdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial. This

summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensive list of the key principles. [13] [ 28 ] It is useful to review what Binnie, J. said in Sheppard : [I]n the vast majority of criminal cases both the issues and the pathway taken by the trial judge to the result will likely be clear to all concerned.

Accountability seeks basic fairness, not perfection, and does not justify an undue shift in focus from the correctness of the result to an esoteric dissection of the words used to express the reasoning process behind it. [14] [ 29 ] I now propose to examine the trial judgment in order to determine whether it is possible to understand the basis for the verdict. As the Supreme Court specified in Sheppard , a new trial should not be ordered if it is possible to explain the result to the parties: 10.

Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient. There is no need in such a case for a new trial. The error of law, if it is so found, would be cured under the s. 686(1)( b )(iii) proviso. [15] [ 30 ] First I will analyze the appellant’s two arguments concerning the assessment of the complainant’s testimony. Then, I will determine whether the basis for the verdicts is established for the counts.

IV – Complainant’s testimony A –Contradictions, inaccuracies or improbabilities [ 31 ] The appellant maintains that the trial judge did not clearly address the large number of contradictions, implausibilities, and inaccuracies with regard to the complainant’s testimony, which the appellant describes as essential. [ 32 ] In his judgment, the judge assessed the complainant’s credibility. He emphasized that the defence had pointed out all the inaccuracies, contradictions, and implausibilities in the testimony.

Without listing them all, which in itself is not fatal, [16] the judge stated that he was aware of the weaknesses that could affect the complainant’s credibility. [ 33 ] The trial judge indicated that all the evidence introduced must be assessed as a whole to determine the reliability or implausibility of elements. He took the following elements into account: - He found the complainant to be very sincere and astonishingly frank; - At the time of the events, the complainant had just turned sixteen years old. She had drug and behavioural problems and was a runaway.

She lived with a forty-year old man for eleven days, during which time she consumed drugs and had sex daily; - In such a context it is plausible and normal that she does not remember every detail she experienced; - She did not attempt to invent evidence or fill in her memory gaps; - A large part of her testimony was corroborated and supported by testimonial and documentary evidence. [ 34 ] The trial judge concluded that these flaws and contradictions did not affect the complainant’s testimony. [ 35 ] I believe, for the reasons I will now explain, that the judge could conclude, as he did, that the complainant’s testimony was reliable.

B – Evaluation criterion [ 36 ] The appellant criticizes the trial judge for having used the wrong criteria when he wrote the following: [ translation ] The Court cannot demand the same rigour and accuracy from the complainant, given her age and everything she experienced over a brief

period, as from an adult in possession of all her faculties. The trier of facts must adapt to the witness when appreciating hertestimony.[17] [37] In R. v. Marquard,[18] McLachlin, J. states the rule in these words: In R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122, this Court warned against applying negative stereotypes to the evidence ofchildren.

At the same time, it emphasized at p. 134 that the trier of fact must be cognizant of the weaknesses of a particular piece ofevidence: Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundationfor a verdict of guilt, whether the complainant be an adult or a child.

What the changes [in the way the courts look at evidence ofchildren] do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. calleda "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particularcase.[19] [Emphasis added] [38] Although the criterion formulated by the judge is not the same as those set out by the Supreme Court, he applied a common-sense approach to assess the strengths and weaknesses of the complainant’s testimony, the essential elements of which, in his view, werecorroborated. [39] I note that the judge stated in his reasons that he accepted the complainant’s sincerity.

Care must be taken to assign the properweight to this element, much like the witness’s behaviour.[20] Indeed, although it is one element among many, the fundamental issueremains the reliability of a testimony.[21] [40] In R. v. R.(J.),[22] Dutil, J.A. makes the following comments about the distinction between credibility and the reliability oftestimony: [translation] As the appellant submits, the concepts of reliability and credibility are distinct. Reliability refers to the value of a witness’s statement,while credibility refers to the person.

My colleague the Honourable Judge François Doyon clearly explains the difference between theseconcepts: [translation] Credibility refers to the person and his or her characteristics, such as honesty, that manifest themselves in his or her behaviour. Wetherefore speak of the credibility of the witness. Reliability, on the other hand, refers to the value of the witness’s account. We therefore speak of the reliability of a witness’s testimony,or in other words, trustworthy testimony.

Thus, it is recognized that credible witnesses can honestly believe that their version of events is the truth when it is not, simply becausethey are in error; therefore, the witness’s credibility does not necessarily render his or her account reliable.[23] [41] Watt, J.A., of the Ontario Court of Appeal describes these distinctions in R. v. C.(H.): Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness'stestimony.

Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (Ont.

C.A.), at 526.[24] [42] In this case, the judge concluded that the complainant’s testimony was corroborated by testimonial and documentary evidenceand was therefore reliable. [43] We may point out, among this evidence, the testimony of the complainant’s aunt, whom the complainant had arranged tomeet when she fled. During this meeting, the aunt noted the complainant was pale, trembling, afraid, and quite simply [translation]“disoriented”.

She also observed she had bruises on her arms, on one of her shoulders, and on her knees. [44] In addition, the police officer who testified during the trial verified and confirmed the complainant’s testimony regarding theplaces, both bars and dwellings, to which she went. [45] The documentary evidence also confirms that the appellant’s cellphone was used to make and receive calls at Bar A and Bar

B, as well as to contact a businessman who had given his contact information to the complainant. [ 46 ] Admittedly, the appellant is right to submit that the judge’s failure “to sufficiently articulate how credibility concerns were resolved may constitute reversible error.” [25] [ 47 ] The judge did not fail to explain, however, how he resolved the issues regarding the complainant’s credibility and the reliability of her testimony.

He explained why he found her credible and why he accepted her testimony. [ 48 ] His assessment of the evidence, according to which the complainant’s version was corroborated, does not reveal any palpable and overriding error. The fact that another judge could have arrived at a different conclusion does not justify the Court’s intervention. V – The basis for the guilty verdicts [ 49 ] It now must be determined whether the basis for the guilty verdicts was established. A – The first count: subsection 212(2.1) Cr.

C. [ 50 ] The first count against the appellant was for committing the aggravated offence of living off the fruits of prostitution of a person under the age of eighteen years. This offence is drafted as follows: Aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years

(2.1) Notwithstanding paragraph (1)(

j) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who (

a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and (

b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age. [ 51 ] This offence is punishable by a minimum five years’ imprisonment if the following elements are established: - The accused lives wholly or in part on the avails of prostitution of another person; - This person is under the age of eighteen years; - The accused aids, abets, or compels the person to engage in or carry on prostitution with any person or generally, or counsels her to do so for the purpose of profit; - He uses violence toward that person, intimidates or coerces her, or attempts or threatens to use violence; - He has the intention and knowledge required by the different elements that constitute the offence. [ 52 ] I again reproduce the facts accepted by the trial judge and emphasize those that clearly establish the essential elements of the offence in the first count: (

a) After the accused and the man called Chico had amused themselves with the young victim’s body while abusing drugs, he took her to the apartment of a prostitute named Alexandra; (

b) As of the first day, the accused managed to make the young alleged victim, then aged sixteen , feel indebted to him so she would dance and prostitute herself. (

c) The accused encouraged the alleged victim to prostitute herself and to perform these types of actions in Bar A and in Bar B ; (

d) The accused insisted and urged the alleged victim to call the businessman who had given her his contact information directly so she could engage in prostitution ; (

e) The accused chose all the places the alleged victim went to during the period under review in this case. After Bar A, he suggested Bar B. “You’ll make more money,” he said. He knew this place was a common bawdy-house and place of prostitution where illicit sexual intercourse often occurred. Dancing, fellatio, masturbation and full service were all offered for a price; (

f) The accused led X, who was not a prostitute, to Bar B, a common bawdy-house, so she could have illicit sexual intercourse for more money . (

g) The accused was frequently present when the alleged victim performed and danced in the bars; (

h) The accused monitored, or had X monitored, while she worked. The evidence demonstrates that she was more closely monitored at Bar B. (

i) The accused took the money earned by the young alleged victim. He took a great interest in the money she made . Indeed, there was even evidence introduced showing that he was angry one evening because X had left Bar A without being paid by the last client. (

j) Marijuana and crack were consumed daily. The accused knew and encouraged it. “Take this, you’ll feel less ashamed,” he repeated. Less ashamed, the young alleged victim was more at ease having illicit sexual intercourse with clients.

(

k) The accused’s attitude, his verbal and physical violence (punching the victim’s shoulder), his displaying of a knife and his presencethroughout this period resulted in his will being imposed so that X prostituted herself. [Emphasis added] [53] In R. v. Grilo,[26] Arbour, J.A. (of the Ontario Court of Appeal, as she then was) analyzes the purpose of paragraph (

j) ofsubsection 212(1) Cr. C. and its essential elements, in particular the element of exploitation or parasitism. She writes the following: The parasitic aspect of the relationship contains, in my view, an element of exploitation which is essential to the concept of living on theavails of prostitution. For example, when a prostitute financially supports a disabled parent or a dependent child, she clearly provides anunreciprocated benefit to the recipient. However, in light of her legal or moral obligations towards her parent or child, the recipient doesnot commit an offence by accepting that support.

The prostitute does not give money to the dependent parent or child because she is aprostitute but because, like everybody else, she has personal needs and obligations. The true parasite whom s. 212(1)(

j) seeks to punish issomeone the prostitute is not otherwise legally or morally obliged to support. Being a prostitute is not an offence, nor is marrying orliving with a prostitute. A person may choose to marry or live with a prostitute without incurring criminal responsibility as a result of thefinancial benefits likely to be derived from the pooling of resources and the sharing of expenses or other benefits which would normallyaccrue to all persons in similar situations. Prostitutes are under no special restrictions as to the disposition they may wish to make of their income.

A woman may agree to besupported financially by a man, in whole or in part, and vice versa. That option becomes unavailable, however, if the provider is aprostitute and the relationship is parasitic in nature. This, in my respectful opinion, is the only extent to which Parliament has interferedwith the disposition of the earnings of a prostitute. The true scope of s. 212(1)(

j) is thus not completely divorced from its original link with vagrancy. Properly understood in that fashion, s.212(1)(

j) is also more easily distinguishable from s. 212(1)(h), the classic pimping section, which, in essence, prohibits controlling forgain. Living on the avails is directed at the idle parasite who reaps the benefits of prostitution without any legal or moral claim tosupport from the person who happens to be a prostitute.[27] [Emphasis added] [54] In R. v. Downey,[28] Cory, J. adopts the approach of Arbour, J.A. and describes the objective of paragraph 212(1)(

j) Cr. C.(formerly paragraph 195(1)(

j) Cr. C.) in these words: It can be seen that the majority of offences outlined in s. 195 are aimed at the procurer who entices, encourages or importunes a person toengage in prostitution. Section 195(1)(

j) is specifically aimed at those who have an economic stake in the earnings of a prostitute. It hasbeen held correctly I believe that the target of s. 195(1)(

j) is the person who lives parasitically off a prostitute's earnings. That person iscommonly and aptly termed a pimp. See R. v. Grilo (1991), (ON CA), 64 C.C.C. (3d) 53 (Ont. C.A.); R. v. CelebrityEnterprises Ltd. (1977), (BC CA), 41 C.C.C. (2d) 540 (B.C.C.A.); and Shaw v. Director of Public Prosecutions(1961), 45 Cr. App. R. 113 (H.L.).[29] [Emphasis added] [55] Lastly, although R. v. Perreault involved the

interpretation of paragraph (

h) of 212(1) Cr. C., it is nevertheless useful to referto this Court’s judgment in that case:[30] [translation] The element of control refers to behaviour that is invasive, with a hold that leaves the controlled person little choice. Consequently, thisbehaviour includes direction and influence. A person’s movements are directed when rules or behaviour are imposed. Being directeddoes not mean the person directed has no latitude or leeway. Exercising influence includes less coercive behaviour.

Any act exercisedover a person with a view to aiding, abetting, or forcing her to prostitute herself will be considered influence.[31] [Emphasis added] [56] Another essential element of the offence warrants attention. The sentence under subsection 212(2.1) requires proof that thepimp used violence, intimidation or coercion on the person under the age of eighteen years. [57] The issue here is whether the prosecution was required to establish a connection between this kind of behaviour and thecomplainant’s prostitution.

In my opinion, it does not have this burden. [58] I share the opinion of authors Manning, Mewett and Sankoff that it is not necessary to prove a connection between suchbehaviour and the fact that a complainant engages in prostitution as long as there is a certain concurrence between these elements: One issue that has arisen under this

section is whether the Crown must establish that the violence, intimidation or coercion relatedspecifically to the young person's involvement in prostitution. There have been differing views expressed on this point, but the preferableapproach is not to require such proof. First, the statute does not seem to require it.

More importantly, with young women of a vulnerableage, it will often be impossible to dissociate the violence, coercion or intimidation generally from the parasitic relationship that exists.While there should be some concurrence between the two elements (e.g., a person who hits someone a year before the prostitutionbegins would not necessarily come within the subsection), there is no good reason to require proof of a specific purpose for the violence,coercion and intimidation.[32] [Emphasis added]

[ 59 ] Furthermore, this

interpretation is compatible with Lamer, J.’s description of the relationship of dependency between the pimp and the prostitute in Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code ( Man. ) : [33] Quite often, it is the young who are most desirable to pimps as they bring in the most money and are the easiest to control. This leads ultimately to a relationship of dependency which is often reinforced by the pimp getting the prostitute addicted to drugs which are used to exercise control over the prostitute . In that process the pimp's control over the prostitute is such that physical violence and in some cases brutality is not uncommon .

Prostitution, in short, becomes an activity that is degrading to the individual dignity of the prostitute and which is a vehicle for pimps and customers to exploit the disadvantaged position of women in our society. [34] [E mphasis added ] [ 60 ] In his written submissions, the respondent succinctly sums up the evidence relevant to the first count: [ translation ] The uncontradicted evidence, accepted and believed by the trial judge, reveals that the complainant, then aged sixteen years, engaged in prostitution and that the income she earned from it supported the appellant.

The latter encouraged, forced, aided and counselled the complainant to do so with the goal of profiting from prostitution. Finally, he used violence against the latter in the context of the prostitution of a young sixteen-year old runaway taken charge of by a violent forty-year old man who made her dance and prostitute herself while he took her money! [ 61 ] The evidence must be assessed from this perspective. In light of the comments of Cory, J. in Downey , I must conclude that the evidence accepted by the trial judge demonstrate all the essential elements required under subsection 212(2.1) Cr.

C ., and that his findings of fact amply justify the guilty verdict not only for count 1, but also for counts 3 and 4, and they are based on the evidence. B – The second count: paragraph 212(1)(

i) Cr. C. [ 62 ] The issue regarding the second count for the offence described in paragraph (

j) of subsection 212(1) of the Criminal Code is phrased in different words. This paragraph is drafted as follows: Every one who : (

i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person ; is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. [E mphasis added ] [ 63 ] The appellant argues that the trial judge accorded too much weight to the complainant’s testimony. She consumed drugs, but the appellant didn’t make her take them; at most, he suggested she consume them.

The appellant also alleges the evidence must establish a temporal conjunction between consuming the drugs and the act of prostitution. The evidence here, he argues, is too weak and too nebulous. [ 64 ] The respondent submits that the evidence establishes that the appellant made the complainant take drugs so she could do the job, in this case, prostitute herself. He wanted to overpower the complainant’s resistance to the idea of prostituting herself. [ 65 ] The relevant conclusions of the trial judge on this issue are as follows: [ translation ] (

j) Marijuana and crack were consumed daily. The accused knew and encouraged it. “Take this, you’ll feel less ashamed,” he said. Less ashamed, the young alleged victim was more at ease having illicit sexual intercourse with clients. (

k) The accused’s attitude, his verbal and physical violence (punching the victim’s shoulder), his displaying of a knife, and his presence throughout this period resulted in his will being imposed so that X prostituted herself. [ 66 ] The judge accepted the essence of the complainant’s testimony, even though he did not repeat the exact words used by the complainant in her testimony.

Thus, according to him, the appellant’s intent was to help the complainant overcome her shame so she would be more at ease having illicit sexual intercourse with clients. [ 67 ] We must determine whether the evidence reveals the intent to “stupefy the complainant” or to “overpower her to allow someone to have illicit sexual intercourse with her.” [ 68 ] For this purpose, it is first necessary to define the sense of the words “overpower” and “stupefy”. [ 69 ] There are few decisions that interpret these concepts, and those that do consider the issue in a very different context from the one in this case. [35] [ 70 ] These expressions are found in three sections of the Criminal Code : paragraph 212(1) ( i ), paragraph 230 (

b) and paragraph 246 ( b ). [ 71 ] In Bell ExpressVu Limited Partnership v. Rex [36] Iacobucci, J. sums up the modern method of statutory

interpretation and consolidates the principles of statutory

interpretation.

[ 72 ] I adopt the following two elements from Iacobucci, J.’s analysis, which are relevant to this appeal: 1- The words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament ; [37] 2- This principle of

interpretation presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter . [38] [ 73 ] It is necessary to consult the dictionary

definitions to know the ordinary and grammatical sense of words. [ 74 ] The Nouveau Petit Robert defines the verbs “ stupéfier ” and “ subjuguer ” in the following way: Stupéfier: Engourdir par une sorte d'inhibition des centres nerveux; Subjuguer: Mettre quelqu'un dans l'impossibilité de résister, par l'ascendant, l'empire qu'on exerce sur lui (dominer, imposer à). [39] [ 75 ] The Merriam-Webster Dictionary defines the words “stupefy” and “overpower” as follows: Stupefy: To make stupid, groggy, or insensible.

Astonish, astound; Overpower: to overcome by superior force, to affect with overwhelming intensity, to provide with more power than is needed or desirable. [40] [ 76 ] The Canadian Oxford Dictionary gives the following definition of “overpower”: Reduce to submission, subdue. [41] [ 77 ] It is revealing to read both the French and English versions of paragraph 212(1) (

i) Cr. C. , paragraph 230(

b) Cr. C. , and paragraph 246(

b) Cr. C. These provisions are drafted as follows: Proxénétisme 212.

(1) Est coupable d’un acte criminel et passible d’un emprisonnement maximal de dix ans quiconque, selon le c as : […]

i) applique ou administre, ou fait prendre, à une personne, toute drogue, liqueur enivrante, matière ou chose, avec l’intention de la stupéfier ou de la subjuguer de manière à permettre à quelqu’un d’avoir avec elle des rapports sexuels illicites; Procuring 212.

(1) Every one who … (

i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, […] is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Infraction accompagnée d’un meurtre 230.

L’homicide coupable est un meurtre lorsqu’une personne cause la mort d’un être humain pendant qu’elle commet ou tente de commettre une haute trahison, une trahison ou une infraction mentionnée aux articles 52 (sabotage), 75 (actes de piraterie), 76 (détournement d’aéronef), 144 ou au paragraphe 145(1) ou aux articles 146 à 148 (évasion ou délivrance d’une garde légale), 270 (voies de fait contre un agent de la paix), 271 (agression sexuelle), 272 (agression sexuelle armée, menaces à une tierce personne ou infliction de lésions corporelles), 273 (agression sexuelle grave), 279 (enlèvement et séquestration), 279.1 (prise d’otage), 343 (vol qualifié), 348 (introduction par effraction) ou 433 ou 434 (crime d’incendie), qu’elle ait ou non l’intention de causer la mort d’un être humain et qu’elle sache ou non qu’il en résultera vraisemblablement la mort d’un être humain, si, selon le cas : […]

b) elle administre un stupéfiant ou un soporifique à une fin mentionnée à l’alinéa a) et que la mort en résulte; Fait de vaincre la résistance à la perpétration d’une infraction 246. Est coupable d’un acte criminel et passible de l’emprisonnement à perpétuité quiconque, avec l’intention de permettre à lui-même ou à autrui de commettre un acte criminel, ou d’aider à la perpétration, par lui- même ou autrui, d’un tel acte : […]

b) soit administre, ou fait administrer à une personne ou tente d’administrer à une personne, ou lui fait prendre ou tente de lui faire prendre une drogue, matière ou chose stupéfiante ou soporifique . Murder in commission of offences 230. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in

section 52 (sabotage), 75 (piratical acts), 76 (hijacking an aircraft), 144 or subsection 145(1) or sections 146 to 148 (escape or rescue from prison or lawful custody),

section 270 (assaulting a peace officer),

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), 273 (aggravated sexual assault), 279 (kidnapping and forcible confinement), 279.1 (hostage taking), 343 (robbery), 348 (breaking and entering) or 433 or 434 (arson), whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if … (

b) he administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death ensues therefrom; Overcoming resistance to commission of offence 246. Every one who, with intent to enable or assist himself or another person to commit an indictable offence, … (

b) administers or causes to be administered to any person, or attempts to administer to any person, or causes or attempts to cause any person to take a stupefying or overpowering drug, matter or thing, is guilty of an indictable offence and liable to imprisonment for life. [ 78 ] The words “ stupéfier ”, “ stupéfiant ” and “ stupéfiante ” used in the French version of these provisions are rendered in English by the words “stupefy” and “stupefying”. The word “ subjuguer ” in paragraph 212(1) (

i) is rendered by the word “overpower” while the word “ soporifique ” is translated as “overpowering” in sections 230 and 246. [42] [ 79 ] It is worth referring to the comments of Rosenberg, J.A. of the Court of Appeal of Ontario in R. v. Barrow , even though he was discussing a different issue which concerned the

interpretation of paragraph 212(1)(

j) Cr. C. He stated the following: [43]

Moreover, parts of s. 212 of the Criminal Code deal expressly with coercion offences such as the following: 212.

(1) Every one who . . . (

h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally, (

i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, . . . is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. In my view, the living-on-the-avails offence does not require proof of coercion. [44] [ E mphasis added ] [ 80 ] I agree with Rosenberg, J.A. that the offence under paragraph 212(1) (

i) Cr. C. is an infraction that includes an element of coercion. This shared meaning also emerges from sections 230 and 246 Cr. C. , urging an

interpretation common to all of these provisions. [45] [ 81 ] Therefore, despite the inconsistent terminology of the French version of these sections, I find that the title of

section 246 Cr. C. ( Overcoming resistance to commission of offence ) reveals the shared meaning in all these provisions. [46] [ 82 ] Consequently, the shared meaning emerging from the words “ stupéfier ”, “ subjuguer ”, “stupefy” and “overpower” includes a coercive element that consists in making a person take a substance intended to overwhelm their resistance to committing an offence. [47] [ 83 ] Therefore, encouraging a person to take drugs with the intent of helping her feel less ashamed and therefore more at ease having illicit sexual intercourse, is not, in itself, proof of the intent to stupefy or overpower her for this purpose within the meaning of paragraph 212(1) (

i) Cr. C. [ 84 ] The overall relationship between the pimp and the prostitute must always be assessed as a whole and not by analyzing each piece of evidence on its own. [ 85 ] In the present matter, the appellant encouraged the complainant to take drugs in a context of violence, intimidation and coercion, with the intent of overcoming her resistance to prostituting herself.

He thus made her take drugs with the intent to overpower her so someone could have illicit sexual intercourse with her. [ 86 ] The evidence and conclusions drawn by the trial judge as a whole supported finding the appellant guilty on the second count. V - Conclusion [ 87 ] To sum up, and in McLachlin, J.’s words in R.E.M. , although his reasons “may not have been ideal, the trial judge provided adequate reasons to explain why he reached the verdicts of guilt and to form a basis for appellate review.” [48] [ 88 ] For these reasons, I would dismiss the appeal.

GUY COURNOYER, J.A. (AD HOC) [36] 2002 SCC 42 , [2002] 2 S.C.R. 559 .