2020 QCCA 1486, 2020 QCCA 1486

Unofficial English Translation of the Judgment of the Court Procureur général du Canada c. Manoukian 2020 QCCA 1486 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-027300-185 (500-17-042993-082) DATE: November 12, 2020 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. ROBERT M. MAINVILLE, J.A. MARIE-JOSÉE HOGUE, J.A. ATTORNEY GENERAL OF CANADA JACQUES MORIN MARIE SUZIE RAYMOND MAGDALA TURPIN APPELLANTS/INCIDENTAL RESPONDENTS - Defendants v.

NICHAN MANOUKIAN MANOUDSHAG SARYBOYAJIAN ARVINE MANOUKIAN BIRGE MANOUKIAN CHAHÉ MANOUKIAN CÉLINE MANOUKIAN RESPONDENTS/INCIDENTAL APPELLANTS - Plaintiffs and ISABELLE BRIAND DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS IMPLEADED PARTIES - Defendants JUDGMENT [ 1 ] The appellants and the respondents appeal against a judgment rendered on January 8, 2018 by the Honourable Madam Justice France Dulude of the Superior Court, District of Montreal, which allowed in part the action for damages instituted by the respondents and ordered the appellants to pay the respondents $426,100. [ 2 ] For the reasons of Thibault.

J.A., with which Mainville and Hogue, JJ.A. agree; THE COURT: [ 3 ] DISMISSES the principal appeal, with legal costs; [ 4 ] ALLOWS the incidental appeal in part, with legal costs, for the sole purpose of adding the following conclusion to the trial judgment: [518A] ORDERS the Attorney General of Canada, Jacques Morin and Magdala Turpin to pay to Nichan Manoukian and to Manoudshag Saryboyajian $200,000 each, as punitive damages, with interest at the legal rate and the additional indemnity provided for in the Civil Code of Québec as of January 8, 2018, the date of the trial judgment. FRANCE THIBAULT, J.A.

ROBERT M. MAINVILLE, J.A. MARIE-JOSÉE HOGUE, J.A.

Mtre Ginette Gobeil Mtre Dominique Guimond ATTORNEY GENERAL OF CANADA For the appellants/incidental respondents Mtre Jacques Larochelle Mtre Philippe-Antoine Larochelle LAROCHELLE AVOCATS For the respondents/incidental appellants Date of hearing: September 16, 2020 REASONS OF THIBAULT, J.A. [ 5 ] The appellants appeal against a judgment rendered on January 8, 2018 by the Honourable Madam Justice France Dulude of the Superior Court, District of Montreal, which allowed in part the action for damages instituted by the respondents and ordered them to pay the latter $426,100. [1] [ 6 ] The respondents appeal as incidental appellants.

They are asking the Court to increase the amount of the moral damages awarded to Mrs.

Saryboyajian from $50,000 to $100,000 and to order the appellants to pay $200,000 in punitive damages to each of Nichan Manoukian and Manoudshag Saryboyajian. [ 7 ] For the reasons that follow, I am of the opinion that the trial judge did not err in deciding that the appellants committed a fault and in assessing the pecuniary and moral damages awarded to the respondents. [ 8 ] With all due respect, however, I am of the view that she should have ordered the appellants to pay to Nichan Manoukian and Manoudshag Saryboyajian punitive damages of $400,000, namely, $200,000 each. 1- Context [ 9 ] Nichan Manoukian was born in Lebanon in 1947.

Manoudshag Saryboyajian was born in Syria in 1959. They were married in Lebanon in 1978. Their first child, Chahé, was born in Lebanon in 1979. The couple moved to Saudi Arabia in 1980. There, Mr. Manoukian was awarded major decorating contracts. The family grew, with the birth of Birge and Arvine in Saudi Arabia in 1983 and 1986. The family returned to Lebanon in 1986. There, Mr. Manoukian continued his activities as a decorator and operated a carpentry business. [ 10 ] Between 1978 and 1990, as was the custom in Lebanon, the Manoukian family hired a domestic helper through a specialized agency.

A contract was signed upon hiring. The salary ranged from US$100 to US$150 per month in Lebanon and was US$300 per month in Saudi Arabia. The domestic helper was also housed and fed. [ 11 ] In 1990, due to the unstable political situation in Lebanon, the Manoukians moved to Canada. Céline was born here in 1991. Since the situation had stabilized in Lebanon, the Manoukians returned there in 1994. [ 12 ] In 1998, while living in Lebanon, the Manoukians hired Senait Tafesse Manaye (“Ms. Manaye”) as a domestic helper. The contract was for three years and provided for a salary of US$100 per month.

According to the agreement, she was clothed, fed and housed and much of her salary was sent to her family in Ethiopia. Ms. Manaye, however, could keep some money, at her request. [ 13 ] When this contract expired, Ms. Manaye returned to Ethiopia. A few months later, she returned to Lebanon. She signed a new one-year employment contract with the Manoukians at a salary of US$150 per month. This contract was subsequently renewed. [ 14 ] In 2004, the Manoukians decided to move to Canada. They then offered Ms.

Manaye three choices: stay in Lebanon and work for another family, return to live in Ethiopia or accompany the Manoukians to Canada. Ms. Manaye decided to accompany the Manoukians

to Canada and continue working for them as a domestic helper. [ 15 ] Nichan Manoukian then made formal arrangements for Ms. Manaye to obtain a Canadian work permit. In the documents he filled out, he specified the tasks she was required to perform, the agreed upon salary and the duration of the employment contract (August 30, 2004 to August 30, 2007). [ 16 ] Ms. Manaye did not obtain a work permit, but rather a visitor’s visa, which was renewed until May 4, 2005. [ 17 ] The Manoukians [2] and Ms. Manaye arrived in Canada on August 12, 2004. They moved in temporarily with Mrs.

Saryboyajian’s mother in a three-and-a-half room apartment. The family subsequently acquired a house in Laval and moved into it. [ 18 ] On May 4, 2005, the request for an extension of Ms. Manaye’s visitor’s visa was refused. Consequently, she was required to leave the country on pain of expulsion. [ 19 ] It is in this context that, on or about May 17, 2005, the Manoukians retained, at their own expense, the services of Mtre Brownstein to regularize Ms. Manaye’s status in Canada. On November 2, 2005, Mtre Brownstein filed an application for a work permit for Ms.

Manaye with the Canadian High Commission in Nairobi, Kenya. This application was accompanied by a letter signed by the Manoukians on September 19, 2005: To Whom It May Concern: Eight years ago, when we were living in Lebanon, we had a very big house and a summer Cottage on the beach. We have a family of four children and our youngest daughter had a very weak appetite and delicate health. Taking care of her was a full time job. The duties of routine housekeeping and raising children became very hard and very demanding, and therefore we started looking for a live-in nanny.

We used the services of an agency and we hire Senait Tafesse Manaye in 1997. She started living with us and her duties at that time were mainly to take care of our young children especially of our youngest daughter who needed special attention (feeding her was very difficult). Over the years we got used to her and she got used to us. Our children are older now and her duties over the last few years have become mainly housekeeping duties. She has learned our language and we consider her part of our family. We have lived with her for the last eight years and we want to keep her with us.

We make sure that all her needs are covered. Yours Truly Nichan Manoukian Manoushag Manoukian [ 20 ] While awaiting the issuance of the work permit, Mtre Brownstein recommended that the Manoukians limit Ms. Manaye’s outings outside the house and not pay her salary. Mr. Manoukian nevertheless sent two cheques for $300 to Ms. Manaye’s family on August 19 and December 2, 2005. [ 21 ] In late summer 2005, Ms. Manaye met two Ethiopian women in a supermarket. At the time, she was in the company of Mrs. Saryboyajian. One of the two Ethiopian women gave Ms. Manaye her telephone number and Ms.

Manaye called her in December 2005. [ 22 ] On January 16, 2006 , Feven Amaha and Yeshowatsehay Boyino, the two Ethiopian women Ms. Manaye had met during the summer, went to the Laval Police Service to report her situation. According to their statements, Ms. Amaha met Ms. Manaye in late summer 2005 in a supermarket. Recognizing a compatriot, she gave her her phone number. Ms. Manaye phoned her in December 2005. Some time later, Ms. Manaye also contacted Ms. Boyino. During these telephone calls, Ms.

Manaye allegedly complained about her situation, in particular the fact that she was not allowed to leave the house and that she was working without time off. [ 23 ] On January 19, 2006 , appellant Marie Suzie Raymond, a constable with the Immigration and Passport

Section of the Royal Canadian Mounted Police (“RCMP”), was contacted and informed about the denunciations of Ms. Amaha and Ms. Boyino. She enquired with the Canada Border Services Agency (“CBSA”) and learned that Ms. Manaye did not have a work permit, that her visitor’s visa had expired, and that she was working as a domestic helper for the Manoukians. [ 24 ] Constable Raymond met with the two Ethiopian women, Ms. Amaha and Ms. Boyino. They confirmed the statements they had made on January 16, 2006 to the Laval Police Service. Constable Raymond worked with appellant Constable Magdala Turpin.

Both were supervised by appellant Sergeant Jacques Morin. [ 25 ] Based on the information obtained from the CBSA regarding Ms. Manaye’s status and the statements of the two Ethiopian women, Constable Raymond obtained a search warrant on January 24, 2006. [ 26 ] On January 25, 2006 , the search warrant was executed. Very early in the morning, at 6:25 a.m., 12 people -- five RCMP members, one CBSA officer and six Laval police officers -- arrived at the Manoukian residence. The documents relating to Ms. Manaye’s status were seized from an unlocked cabinet next to her room. Ms.

Manaye left the residence in the company of Constables Raymond and Turpin. Nichan Manoukian, Manoudshag Saryboyajian and Birge Manoukian were questioned by Laval Police Service officers. [ 27 ] That same day , Constable Raymond questioned Ms. Manaye in the presence of interpreter Isaac Nafi.

The following information can be noted from this questioning: (1) the working conditions at the Manoukians in Canada were the same as in Lebanon; (2) she felt that she was working too much, was poorly paid, she wanted to do the same work, but be paid more; (3) she acknowledged that she was [ translation ] “well treated, respected, not forced to do anything”, (4) she was happy to come to Canada with the Manoukians, (5) her passport was in the hands of a lawyer, and (6) she could retrieve it if she wished.

[ 28 ] The judge summarized Ms. Manaye’s statement as follows. This

summary is consistent with the evidence: [ translation ] [117] During that time, Constable Raymond, accompanied by the French-Amharic interpreter, Mr. Nafi, met with Ms. Manaye at RCMP headquarters. Constable Raymond noted the following from the interview: • She left Ethiopia in 1998 to work in Lebanon for the Manoukians because of the economic situation and lack of work in her native country; • In Canada, her working conditions are the same as in Lebanon; • She works seven days a week.

She works all day because she has to iron clothes, look after the children after school, prepare lunches and not everyone arrives at the same time; • She rests when her work is done, at around 11:30 p.m.; • As for her salary, she has to ask for it when she wants to receive it and, in that regard, she stated that the Manoukians owe her the equivalent of one year’s salary; • She works every other weekend at the home of friends of the family for $10 an hour; • The Manoukians buy her personal belongings for her, but she cannot choose her own clothes; • The Manoukians entrusted her immigration file to a lawyer, but she does not know if he is handling her case.

In this regard, she had fake diplomas brought in from Ethiopia to prove the required schooling and the Manoukians are aware that these documents are fake; • She would like to leave the Manoukians and start a new life. In fact, she would like to earn more money for the same job. [118] That day, however, Ms. Manaye also confirmed that she was “well treated, respected, not forced to do anything”. She even added that she was happy to come to Canada with the Manoukians and that the lawyer had her passport and if she wanted it, she could ask for it. Constable Raymond did not question Ms.

Manaye further about these statements. [ 29 ] That same day , Mrs. Saryboyajian, Mr. Manoukian and their son Birge met with the police. From their questioning, it can be noted that

(1) Ms. Manaye’s passport was given to a lawyer so he could regularize her status in Canada and (2) in the meantime, since Ms. Manaye did not have a work permit, the lawyer recommended that they suspend the payment of her salary and limit her outings. [ 30 ] The judge summarized the statements of these three individuals as follows. The

summary is consistent with the evidence: [ translation ] [116] Following the search, the police obtained additional information, which can be summarized as follows: From Mr. Manoukian: • He gave the passport and information about Ms. Manaye to a lawyer he had retained to regularize her “status”; • In Lebanon, she worked for them as a domestic helper, but she was paid at the time. Since they have been in Canada, she is more like one of his daughters. She is not paid, but she has no obligations in the house. She lives as if she is in her own home.

In fact, she has her own room in the basement with a private bathroom; • Since she has no status, he cannot have her work right now; • She has never asked to be paid for what she is doing in the house in Laval; • They do not let Mrs. Manaye go out “like she wants” since she is afraid when she is alone and “does not know where to go or what to do”, but she has never asked to go out alone. From Mrs.

Saryboyajian: • She cannot pay her a salary since she is still not authorized to work here, but she gives her money to send to her country; • It was the lawyer they hired to complete the immigration papers who advised them not to let Ms. Manaye go out until the process was completed. It is therefore within this context that she refused to let Ms. Manaye go out with Ms. Boyino. Birge Manoukian: • Ms. Manaye has been their maid for about seven years and she makes their lunches.

She is housed and fed and receives a salary, but he does not know how much. [ 31 ] On February 14, 2006 , Constables Raymond and Turpin questioned Ms. Manaye again with the same interpreter, Mr. Nafi. At that time, Ms. Manaye’s version changed drastically. While in her statement of January 25, 2006, she had said that she was treated well and respected by the Manoukians, she now claimed that she had received serious threats from them and that she was afraid of them.

[ 32 ] The constables did not ask any questions about this unexpected and surprising turnaround between the two statements made by Ms. Manaye. They did not meet with Mtre Brownstein or any of the witnesses and neighbours identified by the Manoukians to support their version. [ 33 ] The judge wrote the following about the new version and the lack of reaction on the part of the constables: [ translation ] [123] To what had already been mentioned on the day of the search, [Ms. Manaye] added the following in particular: • At the beginning, when she started working for the Manoukians in Lebanon, Mr.

Manoukian threatened to cut off her head if she did not continue working for them. On one occasion, he put a knife to her throat to make sure she came back to work for them after her stay in Ethiopia. Nevertheless, she stated that she had not received any other threats since then; • The girl who worked for the family before her told her that she had been severely beaten by Mr. Manoukian for having answered him or retorted; • When they left Lebanon for Canada, the Manoukians told her she was not to speak to anyone; • She does not want to go back to the Manoukians.

She does not fear for her life, but she feels uncomfortable seeing them again. [124] That day, despite these surprising statements, the constables did not further question Ms. Manaye about the contradiction between her earlier statement that she was well treated by the Manoukians and that they respected her and the threats to which she now referred. [125] Similarly, the constables did not try to verify the information provided about the girl who had worked for the Manoukians before her. Yet, such a follow-up would have made it possible to gauge the credibility of Ms.

Manaye’s version and assess whether there was really exploitation. [ 34 ] On March 13, 2006 , the Manoukians voluntarily reported to RCMP headquarters to provide statements again. They repeated what they had already stated on January 25, 2006, and added that they treated and loved Ms. Manaye as if she were their daughter, that she was free to move about freely, that she had the key to the house, the access code to the garage, and that she visited their relatives, neighbours and friends with them. The trial judge summarized the interviews given by the Manoukians as follows. This

summary is consistent with the evidence: [ translation ] [128] Thus, on March 13, 2006, from 1:05 p.m. to 6:25 p.m., Constable Raymond met with Mr. Manoukian. An audiovisual recording of this interview was made. In essence, Mr. Manoukian confirmed what he had already mentioned on the day of the search. He added the following in particular: • When he bought the house in Laval, he asked Ms.

Manaye if she wanted to stay or leave; she cried and said she did not want to leave; • He paid $4,000 to $5,000 to the lawyer retained for the immigration process; • An Ethiopian woman named “Titi” phoned their house to ask if she could pick up Ms. Manaye on the weekend and his wife refused based on the recommendations of the lawyer responsible for obtaining a work permit; • Ms. Manaye then asked when she could go out, although she had never made such a request before. Her character then began to change; • Ms. Manaye lives in the house in the same manner as his children.

She visits neighbours, relatives and friends with them. Among other things, she can leave the house, she has a key and the access code for the garage door; • As far as he is concerned, Ms. Manaye is “legal” in Canada so far; • In Lebanon, they had “other maids”: a girl from the Philippines, two or three Sri Lankan girls and a Togolese girl. They had friends who also had Ethiopian domestic helpers who would meet; • When they were living in Lebanon, Ms. Manaye left at the end of her first contract to return to Ethiopia to visit her family for a few months.

Afterwards, they phoned her because they needed help organizing the engagement of their daughter Arvine and Ms. Manaye agreed to return to Lebanon; • When they arrived in Canada, they moved in with Ms. Saryboyajian’s mother in a three-and-a-half room apartment. At that time, Ms. Manaye spent her days playing cards with his mother-in-law; • Ms. Manaye had US$2,000 in traveller’s cheques, but he did not know where they were; • When they arrived in Canada, he owed nothing to Ms. Manaye since he had paid her her entire salary.

Since their arrival in Canada, he paid her the same salary as in Lebanon until December 31, 2004. In 2005, he made two transfers to Ethiopia with Western Union, amounting to approximately $600, which represents four months of salary according to the employment contract signed in Lebanon; • He stopped paying Ms. Manaye, however, on the recommendation of the lawyer, because he had to obtain her work permit first. […]

[130] In essence, Mrs. Saryboyajian confirmed what she had already mentioned during the search. She added the following, among other things: • They hired Ms. Manaye through an agency, as do a number of families in Lebanon; • When they arrived in Canada, they lived with her mother; • When they found a house, they made sure Ms. Manaye still wanted to stay with them before setting up a room for her in the basement; • Ms. Manaye was with them when they met with the lawyer. The lawyer made sure that she still wanted to stay with the family; • The lawyer told them that they could not pay Ms.

Manaye or let her go out alone, as she had no “legal status”. In the meantime, they nevertheless gave her some pocket money; • They had not decided how much salary they would pay Ms. Manaye once she obtained a “legal status”; • She received two calls from “Titi” in January 2006. She refused to let Ms. Manaye go with her for the weekend because her papers were not in order; • Ms. Manaye never asked to go out, she could not go alone because she did not know where to go. She felt responsible for Ms. Manaye; • Ms.

Manaye, however, was free to move about since she had the keys to the house and the access code for the garage door, but she spoke neither French nor English; • In Canada, Ms. Manaye continued to perform household chores and prepare meals with her; • She was afraid of the police; • She did not know why Ms. Manaye had never said, for example: “I don’t want to stay with you. I want to do something else”; • When Ms. Manaye first came to them, she only spoke “Ethiopian”. In one year, she learned Armenian; • She loves Ms. Manaye like a daughter. Ms. Manaye is always with her; • When Ms.

Manaye’s passport expired, they all went to Ottawa together to renew it; • The lawyer told them that it would be difficult to obtain a “legal status” for Ms. Manaye and that the process would cost a lot of money; • They have never applied for welfare; they are honest people. [ 35 ] In May 2006 , Constable Raymond submitted her investigation report to Mtre Mayberger, a lawyer with the Public Prosecution Service of Canada (“PPSC”). The matter was then assigned to Mtre Norris.

In October 2006, the investigation file was transferred to Mtre Isabelle Briand, a lawyer with the Director of Criminal and Penal Prosecutions (“DCPP”), one of the impleaded parties. [ 36 ] One important fact deserves to be explained. The lawyer for the PPSC had recommended that Constable Raymond have Ms. Manaye’s interviews listened to by another interpreter to ensure that the translation by interpreter Nafi was accurate. It is in this context that a different interpreter, Mr. Dominique Samuel, listened to Ms. Manaye’s interview that had been conducted on January 25, 2006 and translated by Mr.

Nafi. [ 37 ] In her general incident report, Constable Raymond wrote that the interpreter confirmed the accuracy of the translation of the interview. She failed, however, to disclose a crucial element. Indeed, she did not mention the existence of private conversations between Ms. Manaye and interpreter Nafi, although this was expressly noted by interpreter Samuel. During these private conversations, interpreter Nafi encouraged Ms. Manaye to complain about her situation. This might lead one to think that this encouragement led to the drastic change in Ms.

Manaye’s second statement: [ translation ] [136] While interpreter Samuel essentially confirmed that the translation faithfully reproduced the interview, he added the following with respect to the discussions between Ms. Manaye and the interpreter in the absence of Constable Raymond: The private conversations I was also asked to report on the various conversations between the interpreter and the interviewee when Constable Raymond had to leave the room on a number of occasions. Here is what I noted: 9:41 a.m.: The interpreter, Ms.

Tadesse and Constable Raymond left the room to take a break. 9:45 a.m.: The interpreter and Ms. Tadesse returned from their break. The interpreter shared his observation with the interviewee, telling her that she spoke little and that she needed to speak more, that she seemed withdrawn as if she were hiding something. He told her to speak more clearly to Constable Raymond who wanted to help her. Ms. Tadesse asked the interpreter if she should say that she wanted to leave the family. The interpreter replied: she needs to know what you want and you have to make her understand your wishes.

You have to show the kind of life you’re leading, it’s a unique opportunity you’re being given and you have to talk now. Ms. Tadesse asked: if I leave the family, what will happen to me?

The interpreter answered: you’ll live your life, they’ll help you. You work seven days a week and you make $150. She just told you. Here you can earn $150 a day! Ms. Tadesse asked: Should I tell her I’m working somewhere else? The interpreter answered: when she asks you, and he added: if you just say that they respect you, that you’re well, that you’re happy! If someone is happy and well, there’s nothing to do. Ms. Tadesse asked: won’t they question them? The interpreter: What do you care?

It’s not normal that they lock you up on Saturday and Sunday, you need to be able to go out and rest too. 10:26 a.m.: Constable Raymond left the room after authorizing Ms. Tadesse to phone a compatriot whom she was not allowed to call from her home. Since she was unable to dial the telephone number properly, the interpreter helped her and handed her the handset so she could talk to her compatriot.

As she began to speak, the interpreter took back the phone to speak with the compatriot: “explain to her, because she doesn’t seem to understand, she doesn’t know anything, exactly, that’s what I’m telling her, she doesn’t know, we’re at the police, make her understand, it’s time to talk, she has to get out, tell her” and he gave the phone back to Ms. Tadesse. 10:45 a.m.: Constable Raymond had to leave the room, because there was a knock at the door, just after having asked the question: does the lawyer know these documents are fake. The interpreter: does the family know the diplomas are fake? Ms.

Tadesse answered: no the lawyer doesn’t know they’re fake. The interpreter: does the family know the diplomas are fake? Ms. Tadesse answered: yes, they know. The interpreter: will they tell the lawyer? Ms. Tadesse: no, I’m sure they’re not going to tell him. 10:57 a.m.: Constable Raymond left the room again, because someone had knocked at the door again. The interpreter: she wants to help you, tell the truth, not telling the truth is not to your advantage, if the lawyer told you something repeat it.

Think about yourself, you’re not my sister, but I’m saying this to you as someone from the same country, tell the truth, you only have one life, don’t be silly. What they do to the lawyer is not your concern. My comments Throughout the interview, I noticed that the interviewee seemed to have a limited vocabulary and did not say much. She usually answered yes or no and spoke in a very low voice; her voice was so low that sometimes I could only understand her answers through the French

interpretation. [3] [Emphasis added by the trial judge] [ 38 ] On December 1, 2006 , Mtre Briand met with Constables Raymond and Turpin, Ms. Manaye and interpreter Nafi. [ 39 ] On May 14, 2007 , Mtre Briand authorized the laying of charges for trafficking in persons ( s. 279.01 Cr.C . ), receiving a material benefit ( s. 279.02 Cr.C . ) and withholding or destroying documents ( s. 279.03 Cr.C . ). [ 40 ] On May 18, 2007 , Constable Turpin held a press briefing regarding the charges.

In addition, the RCMP published a press release on this subject on its website without first having discussed it with Mtre Briand. [ 41 ] On August 13, 2007 , Constable Turpin gave Mtre Briand the additional investigative information requested by the latter on June 13, 2007. It contained the statements of several witnesses identified by the Manoukians and their lawyer. [ 42 ] On October 5, 2007 , Mtre Briand met with Ms. Manaye. [ 43 ] On December 6, 2007 , the DCPP withdrew all charges against the Manoukians.

In the meantime, several newspaper articles had been published [4] on the subject in different languages in Canada and elsewhere. [ 44 ] On May 14, 2008, the respondents commenced an action for damages against the appellants and the impleaded parties.

The trial began on October 3, 2016 and lasted 14 days. 2- The trial judgment [ 45 ] In a particularly detailed and thorough judgment, the judge recounted the events and then addressed the issue of the appellants’ liability. [ 46 ] Considering the evidence available to the constables at the beginning of their investigation, the judge was of the view that the initial information – from the statements of the two complainants and from checks with the CBSA – indicated that there were reasonable and probable grounds to believe that a crime had been committed, warranting the search. [ 47 ] However, the information gathered during: (1) the search on January 25, 2006; (2) interviews with the three members of the Manoukian family on January 25, 2006; (3) the two meetings with Ms.

Manaye on January 25 and February 14, 2006; and (4) interviews with Nichan Manoukian and Manoudshag Saryboyajian on March 13, 2006, led her to conclude that, when the appellants laid an information, there were no reasonable and probable grounds to believe that the offences in question had been committed. [ 48 ] She performed a two-fold analysis. [ 49 ] First, she stated that it was not necessary to consider the appellants’ argument that they had grounds to believe that offences under the Immigration and Refugee Protection Act [5] (“ IRPA ”) had been committed.

Indeed, while the RCMP considered, in passing, the commission of offences under the IRPA , the preponderant evidence demonstrated that, from the outset, the RCMP had conducted its investigation based on the offences set out in the Criminal Code . [ 50 ] Second, in her view, none of the three offences was supported by the evidence. The offence of trafficking in persons ( s. 279.01

Cr.C . ) requires that there have been exploitation, a concept defined in s. 279.04 Cr.C . , that is, conduct that causes a person to fear for their safety. The RCMP officers did not take that definition into account. The elements they relied upon for purposes of exploitation, such as Ms. Manaye’s vulnerability, were external circumstances beyond the Manoukians’ control. Several pieces of information showed that Ms. Manaye was not being exploited within the meaning of s. 279.04 Cr.C .

Given these elements, a reasonably prudent, diligent and competent police officer in the same circumstances would not have concluded that there were reasonable and probable grounds to believe that the offence of trafficking in persons had been committed or, at the very least, he would have continued the investigation (paras. 159 to 191). [ 51 ] Nor did the RCMP officers have reasonable and probable grounds to believe that the offences of receiving a material benefit ( s. 279.02 Cr.C . ) and withholding or destroying documents ( s. 279.03 Cr.C . ) had been committed.

The improper payment of wages lower than those legally payable in Canada is not a material benefit within the meaning of the applicable provision, because the material benefit provided for in that provision must result from trafficking in persons (paras. 192 to 195). [ 52 ] Finally, there was no evidence that the documents were being withheld by the Manoukians to harm Ms. Manaye. These documents were all directly accessible. With respect to her passport – which had been given to the lawyer, Mtre Brownstein, who was in charge of regularizing her situation – Ms.

Manaye had stated that it would have been given to her if she had wanted it back (paras. 196 to 202). The other documents were accessible, as they were in an unlocked cabinet to which Ms.

Manaye had access. [ 53 ] In addition to the lack of reasonable and probable grounds to believe that the offences had been committed, the judge was of the view that the RCMP had conducted a negligent and botched investigation (paras. 204 to 236) and that the investigation report submitted to the DCPP had been incomplete (paras. 237 to 246). [ 54 ] The respondents demonstrated the causal link between the negligent investigation, the incomplete report and the damages claimed. Without these faults, Mtre Briand would have made another choice or she would have waited for a further investigation before laying charges.

In any event, Mtre Briand’s decision did not sever the causal link (paras. 247 to 254). [ 55 ] As a separate fault, the judge noted the press briefing held by Constable Turpin and the press release published by the RCMP on its website on May 18, 2007.

Despite the caution required on the part of the constables in such a situation, the judge concluded that the comments made were not only based on a botched investigation, but were also contrary to what the investigation had revealed to them (paras. 255 to 269). [ 56 ] Consequently, the judge held the appellants liable for the damages caused to the Manoukians as a result of (1) their negligent investigation; (2) the delivery of an incomplete report to the lawyer responsible for laying charges; and (3) the misleading statements made both in the press release published on the RCMP’s website and at the press conference (paras. 270 to 273). [ 57 ] The judge was of the opinion that the impleaded parties had not committed a fault giving rise to their liability.

As this conclusion is not challenged on appeal, it is not necessary to explain the reasons in support thereof (paras. 274 to 356). [ 58 ] The judge assessed the damages suffered by the Manoukians. She awarded: - Mr. Manoukian : $125,000 for loss of income (paras. 357 to 422), $21,100 for other pecuniary losses (paras. 423 to 434) and $150,000 for moral damages (paras. 435 to 465); - Mrs.

Saryboyajian : $50,000 for moral damages (paras. 466 to 482); - Arvine, Birge, Chahé and Céline Manoukian : $20,000 each for moral damages (paras. 483 to 489). [ 59 ] However, she refused to order the appellants to pay the respondents punitive damages. She was of the view that the appellants had not committed an intentional act or shown bad faith that merited punishment by means of such damages (paras. 490 to 500). 3- The issues in dispute [ 60 ] The appellants ask the following questions: - What is the standard of care for constables in investigations? - What is the

interpretation of ss. 279.01 to 279.04 Cr.C . ? - Were the RCMP press release and press briefing misleading and based on an incomplete and botched investigation? - Is the assessment of damages incorrect? - Is there a causal link between the faults committed and the harm suffered? [ 61 ] In their incidental appeal, the respondents ask the following questions: - Are they entitled to punitive damages? - Is the assessment of non-pecuniary damages suffered by respondent Saryboyajian incorrect? 4- Analysis

4.1 The standard of care for constables in investigations [ 62 ] According to the appellants, the judge analyzed the conduct of the constables a posteriori and unduly raised the standard of conduct applicable to them. They submit the following three complaints. [ 63 ] First , the judge erred by imposing on them an obligation to form an opinion on the credibility of the witnesses and the reliability of the evidence, which is not their role.

Consequently, she erred in concluding that the constables had been negligent in not continuing their investigation. [ 64 ] Second , the judge imposed a higher standard of conduct on them than that set out in Hill . [6] She should have taken into account that their investigation involved new offences under the Criminal Code . [ 65 ] Third, since the evidence did not reveal how the investigation report was transmitted to the DCPP, the judge could not conclude that there was any negligence on their

part in relation to the investigation report. [ 66 ] Before considering these submissions, I propose to summarize the applicable legal rules. In Kosoian , [7] the Supreme Court recently considered the civil liability of police officers in Quebec civil law: [39] In exercising these powers, police officers are therefore bound by strict rules of conduct that are meant to prevent arbitrariness and unjustified restrictions on rights and freedoms . Police officers who deviate from these rules may be civilly liable.

They have no public law immunity in this regard. [40] Under Quebec law, a police officer, like any other person, is held civilly liable for the injury caused to another by his or her fault, in accordance with art. 1457 of the Civil Code of Québec (“ C.C.Q. ”). The officer’s employer is bound to make reparation for the injury if the fault was committed in the performance of the officer’s duties, pursuant to arts. 1463 and 1464 C.C.Q .

In short, there are no exceptional rules applicable to the police. [41] Whether a police officer should be held civilly liable must be determined by referring to the cumulative conditions set out in art. 1457 C.C.Q. […] [45] It is well established that police conduct must be assessed according to the test of the normally prudent, diligent and competent police officer in the same circumstances.

Professors Baudouin and Fabien provide the following explanation of the approach to be taken by a court ruling on a police officer’s alleged fault: [TRANSLATION] A court that has to judge a police officer’s conduct must begin by assessing the facts in abstracto against the ideal, abstract standard of a police officer of ordinary prudence, diligence and skill. This standard is not necessarily the result of observing the average conduct of the coworkers of the police officer in question. In determining this standard, the court can consider empirical data.

However, it is not bound by such data and can project onto the standard its own idea of what seems socially desirable. The “prudent administrator” of the Civil Code is not a sociological fact, but a normative creation. The standard of conduct that is applied to determine whether a police officer committed a fault is not one of excellence. It is an average standard, neither the best nor the most mediocre. Next, it is important to properly place the “yardstick police officer” in the same external circumstances as the police officer whose conduct is being assessed.

The circumstances of place (temperature, visibility, urgency, etc.) and time must be considered. [46] The reasonable police officer test recognizes the largely discretionary nature of police work.

In this regard, the observations made by the Court in Hill concerning the tort of negligent investigation can, for the most part, be transposed to Quebec civil law : Police exercise their discretion and professional judgment in accordance with professional standards and practices, consistent with the high standards of professionalism that society rightfully demands of police in performing their important and dangerous work. *** The standard is not perfection, or even the optimum, judged from the vantage of hindsight.

It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information.

The law of negligence does not require perfection of professionals; nor does it guarantee desired results. [Citation omitted; paras. 52 and 73.] [Citations omitted; emphasis added] [ 67 ] The role of investigating police officers is therefore to gather evidence and weigh it against the standards and practices established for their profession. [8] Consequently, [ translation ] “[p]olice officers must assess both the inculpatory and exculpatory elements, weigh them and remain objective about the conclusions of their investigation to identify the existence of reasonable and probable grounds” [9] to believe that an offence has been committed.

Indeed, [ translation ] “[w] hen a police officer decides to follow up on a complaint and sign an information, there must be reasonable grounds” for doing so. [10] However, police officers are not required to opine on the guilt or innocence of the suspect [11] or to be convinced that the suspect’s guilt can be proved beyond a reasonable doubt. [12] [ 68 ] The police officer’s fault may result from failing to make sufficient inquiries, relying on mere suspicion to arrest a person, or deciding to reject evidence favourable to the suspect without good reason before denouncing the suspect. [13] That being said, a police officer is not required to exhaust all possible avenues.

Everything depends on the circumstances of each case. Thus, depending on the circumstances, the police officer may not be required to interview all potential witnesses, obtain the suspect’s version or otherwise rule out all possible defences before proceeding with the arrest. [14] The police officer’s conduct must be assessed at the time of the events,

on a case-by-case basis, according to the information known when the officer made his or her decision. [15] [ 69 ] It is with these principles and guidance in mind that I address the three grounds proposed by the appellants. 4.1.1 The credibility of witnesses, the reliability of the evidence and the continuation of the investigation [ 70 ] The duty of a police officer to assess the credibility of a witness and the reliability of his or her statements depends on the circumstances of the investigation.

In each case, it is a matter of deciding what a normally prudent, diligent and competent police officer in the same circumstances would do based on the evidence and information gathered. [ 71 ] The appellants’ assertion that a police officer is [ translation ] “never” required to check the credibility of witnesses must be rejected. This obligation is part of any serious investigation. Police officers are certainly not required to assess the evidence in light of the criminal burden of proof.

However, before closing an investigation and recommending that charges be laid, police officers are required to have reasonable and probable grounds to believe that an offence has been committed. Consequently, they must form an opinion about the evidence gathered to determine whether it allows them to believe that there are reasonable and probable grounds that the offence was committed.

This necessarily involves assessing the evidence, weighing both inculpatory and exculpatory elements. [ 72 ] In the present case, the judge’s criticisms of the appellants regarding the inadequacies of the evidence gathered by the constables and the need to continue their investigation are well founded. She set out in detail the five reasons why, in her view, the constables did not have reasonable grounds to believe that offences had been committed after their March 2006 meeting with the Manoukians and why they should have continued their investigation. [ 73 ] The trial judge’s demonstration is clear.

It consists of five points based on a flawless analysis of the evidence: [ translation ] [216] First , when they met with Ms. Manaye in January 2006, the constables asked her very few questions about her work. For example, they did not really try to find out what she did during the day when Mrs. Saryboyajian and the children were working or when Céline was at school. They did not question her further about her duties and responsibilities when the family had been living with Mrs. Saryboyajian’s mother in a modest-sized apartment. [217] Moreover, when Ms.

Manaye stated in January 2006 that the Manoukians treated her well and respected her, the constables did not ask for details of her relationship with each of the family members, nor did they seek to understand why she had not told the Manoukians about her wish to leave them. [218] Lastly, the constables did not ask any questions, either to interpreter Nafi or to Ms. Manaye, about the discussions that took place in the absence of Constable Raymond. [219] Second , on February 14, 2006, when they met again with Ms.

Manaye and she spoke for the first time about the incident of the beaten domestic helper and the threats made by Mr. Manoukian, they did not ask her about the apparent contradictions between her two statements. [220] Similarly, they did not ask her when or how she had met the previous domestic helper when she arrived in Lebanon, nor in what language they had spoken, whereas, by all accounts, the information available at that time was that the previous domestic helper was from the Philippines. [221] Nor did they try to find out why, if she was afraid of Mr.

Manoukian, she had agreed to return to Lebanon voluntarily after her leave following the end of her first contract, or why she had stated in January 2006 that she had been happy to come to Canada with the Manoukians in 2004. [222] Third , when the constables met with the Manoukians on March 13, 2006, they did not seek to corroborate Ms. Manaye’s February version. Yet Mrs. Saryboyajian had said in her statement that a month before Ms. Manaye’s arrival, another Ethiopian woman had come for a week and had left because she had had a problem with her foot. [223] Therefore, the constables should have wondered how Ms.

Manaye could have spoken to the previous domestic helper since she had arrived three weeks later. [224] Fourth , during the March 13, 2006 interview, the Manoukians had offered the names of several witnesses who could confirm that Ms. Manaye was treated well and that she was free to do as she pleased. That day, they had also offered the constables photographs that showed that Ms. Manaye was a part of their family life and that she was happy. Finally, they had agreed to take a polygraph test. [225] However, the officers decided not to meet additional witnesses, not to check with Mtre Brownstein whether Ms.

Manaye’s passport would have been given to her on request, not to meet the friends of the Manoukians for whom Ms. Manaye worked, and not to meet the family’s three other children, who were, after all, 26, 19 and 14 years old. [226] The evidence indicates that a further investigation would have revealed the following, among other things: • The incident of the beaten domestic helper and the event where Mr. Manoukian threatened Ms. Manaye with a knife to her throat could not be substantiated; • Ms. Manaye was treated well and respected; • She was free and was part of their family life;

• She could enter and leave the house through the door with her key or through the garage with the access code; • She could choose to spend Christmas with family friends rather than return to the Manoukians and was therefore free to move around; • She would go to the convenience store alone, buy calling cards to call her relatives and ride around on a “scooter”. • She could retrieve her passport, upon request, as well as any other immigration or identification papers; • She was not being exploited within the meaning of s. 279.04 Cr.C . [227] Fifth , as mentioned above, following a specific request to that effect by counsel for the AGC, on July 19, 2006, another interpreter viewed the interview of Ms.

Manaye that had been conducted by Constable Raymond and translated by interpreter Nafi in order to ensure the accuracy of the translation. [228] In his report, interpreter Samuel stated that in the absence of Constable Raymond, Mr. Nafi had encouraged Ms. Manaye to speak if she wished to have police assistance and he had made her understand that if she did not mention a problem, she would not get help. [229] This discussion between Mr. Nafi and Ms. Manaye took place immediately after Ms.

Manaye had told Constable Raymond that the Manoukians were good people, that they respected her, that they had never hit her or abused her, that they did not force her to do things she did not want to do or did not like to do, that she had been happy to come to Canada and that she was free to choose another job if she wanted to. [230] Curiously, upon receipt of interpreter Samuel’s report, Constable Raymond did not meet with Ms. Manaye to talk about her discussion with interpreter Nafi or her surprising statements of February 14, or even to discuss the Manoukians’ statements made in March.

Nor did she re-evaluate her decision not to take any additional steps to verify the Manoukians’ version by meeting with neighbours and friends, as they had suggested. [231] In the particular circumstances of this case, and in light of all the statements made, in the Court’s view, such steps were called for. [232] Indeed, at the hearing, the AGC admitted that the interpreter’s “actions” on January 25, 2006 had been unfortunate, but she stated that they were not related to Constables Raymond and Turpin. [233] If, by all accounts, the Nafi incident was unacceptable, then the decision of the constables not to continue the investigation in July 2006 before handing over the investigation file to the DCPP prosecutor was, by the same token, questionable. [234] The constables should have conducted further verifications.

Had they taken all of these steps, they would likely have forwarded a more substantial and different investigation file to the DCPP; perhaps they would not have proposed that charges be laid, even though they now claim otherwise. [235] In the Court’s view, a serious investigation would have allowed the constables to realize that their conclusions were based on insufficient and not very credible information. [236] In short, while the RCMP was well founded in obtaining a search warrant, its decision to discontinue the investigation and recommend that charges of trafficking in persons be laid was unwarranted. [ 74 ] The appellants have not demonstrated the existence of an error of law in the legal principles applied or the existence of a palpable and overriding error in the trial judge’s analysis and assessment of the evidence.

This ground of appeal is therefore dismissed. 4.1.2 The impact of the novelty of the offences on the applicable standard of care [ 75 ] The appellants argue that the trial judge imposed a higher standard of care on them than that applicable.

Given the novelty of these provisions of the Criminal Code , she should have analyzed their conduct according to the state of their knowledge and the applicable law at the time of the investigation. [ 76 ] The following are the relevant paragraphs of the trial judgment on this issue: [ translation ] [151] The RCMP points out that the role of a police force in an investigation is to gather evidence and assess it against the information available to it.

Thus, it maintains that, in light of the information obtained during the investigation, it had reasonable and probable grounds to believe that offences under the Criminal Code had been committed. [152] It also argues that it does not have to anticipate developments in the jurisprudence. In the present matter, it states that the relevant sections of the Criminal Code came into force on November 25, 2005.

Thus, at the time of the events, there was no jurisprudential precedent, and therefore no guidance, regarding these criminal offences. [153] For the following reasons, the Court does not share this view. [154] While investigating police officers need not anticipate developments in the jurisprudence, they must, in the context of offences under new sections of the Criminal Code , be all the more prudent and diligent. [155] As the RCMP itself points out, reasons often arise out of a combination of circumstances and, therefore, care must be taken not to dissect and analyze each element separately.

Yet that is what it did, even if it claims otherwise. [ 77 ] After making these comments, the judge analyzed the evidence gathered by the constables and, taking into account the essential

elements of each of the offences, she determined whether they had reasonable and probable grounds to believe that the offences had been committed. She therefore used the test prescribed by the Supreme Court in its decisions and correctly concluded – as I will explain in

section 4.2 of my reasons – that such reasonable grounds did not exist. This ground of appeal is therefore dismissed. 4.1.3 Appellants’ negligence when providing the investigation report [ 78 ] The judge found that the appellants had provided the DCPP with a report that did not include all of the evidence gathered and that, had the DCPP received a complete and transparent investigative brief, it would not have authorized the laying of charges or it would have requested additional information before doing so.

In the following paragraphs of her judgment, the judge explained her reasons for concluding that the report prepared by the constables and submitted to the DCPP had been incomplete: [16] [ translation ] [237] In the fall of 2006, the investigation report was submitted to Mtre Isabelle Briand, a lawyer with the DCPP, so that charges could be laid under ss. 279.01 , 279.02 and 279.03 Cr.C . [238] At the hearing, Mtre Briand confirmed that she had received the investigation report and its appendices and that she had also listened “once to part of a CD” with the constables, but she could not say what was on the CD. [239] However, Mtre Briand did not receive: • A copy of Mr.

Manoukian’s statement dated March 13, 2006, including a CD of the interview and the unofficial transcript (158 pages). She only received a one-and-a-half page

summary of that interview; • Mrs. Saryboyajian’s statement dated March 13, 2006, including a CD of the interview and the unofficial handwritten transcript of that recording (61 pages). She only received a one page

summary of that interview; • The CD of Ms. Manaye’s interview dated January 25, 2006 and the unofficial transcript of her statement (76 pages). She only received a one page

summary of that interview; • Interpreter Samuel’s report. [240] Like the applicants, the Court is of the view that the investigation report submitted to Mtre Briand by the RCMP was incomplete and the narrative was imperfect. [241] In fact, if all the documents or information had been transmitted to Mtre Briand, she could have noted the following, among other things: • While in Lebanon, Ms.

Manaye voluntarily returned to the Manoukians’ home following a visit to Ethiopia; • She was happy to come to Canada with the Manoukians in 2004; • Although her passport was in the hands of the Manoukians’ lawyer, she could retrieve it when she wished; • The Manoukians were going to pay her salary once her status had been regularized in Canada; • Ms. Manaye spoke some English since she had sometimes spoken with Constable Raymond in that language; • Ms. Manaye’s statements about the previous domestic servant who had allegedly been beaten and about Mr.

Manoukian’s knife threats were either dubious or not very credible; • Mr. Manoukian and Mrs. Saryboyajian had offered to take a polygraph test and had suggested that the police officers meet with witnesses to confirm that Ms. Manaye was part of the family, that she was happy and that she was free to move about and see whomever she wanted to, with the exception of precautionary rules that were necessary in view of her situation. [242] Moreover, on December 1, 2006, at Mtre Briand’s request, Constables Raymond and Turpin met again with Ms.

Manaye in the presence of interpreter Nafi and Mtre Briand to review her statements. The notes taken at this meeting are

summary and it appears that Ms. Manaye did not provide any additional information. [243] The Court notes, however, that it was interpreter Nafi who was present at this meeting, not interpreter Samuel, and that the constables did not tell Mtre Briand about the discussions between Ms. Manaye and Mr. Nafi. Similarly, they did not take the opportunity to question Ms.

Manaye about her February 14, 2006 statement, nor did they question her about the photographs offered by the Manoukians during the March 2006 interview. […] [251] In all likelihood, if Mtre Briand had been properly guided by a serious investigation and a full and transparent investigative brief, she would, in the Court’s view, have either made another choice or, at the very least, waited for a further investigation before deciding to authorize the charges. [ 79 ] Constable Raymond stated that she gave the investigation report to Mtre Mayberger and that it was then provided to Mtre Norris in early summer 2006.

The file was then transferred to the DCPP, “to the Laval provincial Crown”, because it dealt with offences under the Cr.C . rather than the IRPA . She did not know whether it was a member of her team who had taken the report to Mtre Briand or “if

the transfer had been done from Crown to Crown”. [ 80 ] The evidence, however, clearly establishes that the report given to Mtre Briand (1) was the report written by Constable Raymond; (2) that it had not been altered; and (3) that important information, as accurately identified by the judge in the paragraphs reproduced above, had not been included. [ 81 ] The appellants have not shown that the judge made a reviewable error on this issue. Her findings of fact that the report submitted to the DCPP was incomplete are amply supported by the evidence. This ground of appeal is therefore dismissed. 4.2 The

interpretation and application of ss. 279.01 and following of the Cr.C. [ 82 ] The trial judge explained – in paragraphs 159 to 202 of her judgment – the reasons why she considered that the constables had committed a fault by laying an information against the Manoukians when they had no reasonable and probable grounds to believe that the Manoukians had committed the offences set out in ss. 279.01 and following of the Cr.C . : 279.01

(1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable (

a) to imprisonment for life and to a minimum punishment of imprisonment for a term of five years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or (

b) to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years in any other case.

(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid.

(3) For the purposes of subsections (1) and 279.011(1), evidence that a person who is not exploited lives with or is habitually in the company of a person who is exploited is, in the absence of evidence to the contrary, proof that the person exercises control, direction or influence over the movements of that person for the purpose of exploiting them or facilitating their exploitation. […] 279.02

(1) Every person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1), is guilty of 279.01

(1) Quiconque recrute, transporte, transfère, reçoit, détient, cache ou héberge une personne, ou exerce un contrôle, une direction ou une influence sur les mouvements d’une personne, en vue de l’exploiter ou de faciliter son exploitation commet une infraction passible, sur déclaration de culpabilité par voie de mise en accusation :

a) s’il enlève la personne, se livre à des voies de fait graves ou à une agression sexuelle grave sur elle ou cause sa mort lors de la perpétration de l’infraction, d’un emprisonnement à perpétuité, la peine minimale étant de cinq ans;

b) dans les autres cas, d’un emprisonnement maximal de quatorze ans, la peine minimale étant de quatre ans.

(2) Ne constitue pas un consentement valable le consentement aux actes à l’origine de l’accusation.

(3) Pour l’application du paragraphe (1) et du paragraphe 279.011(1), la preuve qu’une personne qui n’est pas exploitée vit avec une personne exploitée ou se trouve habituellement en sa compagnie constitue, sauf preuve contraire, la preuve qu’elle exerce un contrôle, une direction ou une influence sur les mouvements de cette personne en vue de l’exploiter ou de faciliter son exploitation. […] 279.02

(1) Quiconque bénéficie d’un avantage matériel, notamment pécuniaire, qu’il sait provenir ou avoir été obtenu, directement ou indirectement, de la perpétration de l’infraction visée au paragraphe 279.01(1) est coupable :

a) soit d’un acte criminel passible d’un emprisonnement maximal de dix ans;

(

a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or (

b) an offence punishable on

summary conviction. […] 279.04

(1) For the purposes of sections 279.01 to 279.03 , a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

b) soit d’une infraction punissable sur déclaration de culpabilité par procédure

sommaire. […] 279.04

(1) Pour l’application des articles 279.01 à 279.03 , une personne en exploite une autre si elle l’amène à fournir ― ou à offrir de fournir ― son travail ou ses services, par des agissements dont il est raisonnable de s’attendre, compte tenu du contexte, à ce qu’ils lui fassent croire qu’un refus de sa part mettrait en danger sa sécurité ou celle d’une personne qu’elle connaît. [ 83 ] The appellants argue that the judge erred in law in interpreting s. 279.01 Cr.C .

In their view, the constituent elements of this offence are (1) the conduct of the accused (recruiting, transporting […] a person or exercising control, direction or influence over the movements of a person) and (2) the state of mind of the accused, i.e., an intent to exploit. According to the appellants, the term “exploit” must be interpreted according to its common meaning, that is, [ translation ] “the act of abusively benefitting from or abusively taking advantage of the work of vulnerable persons” and not by taking into account the definition in s. 279.04 Cr.C .

In their view, it does not matter whether or not actual exploitation ensues. [ 84 ] The appellants also argue that the judge erred in law in interpreting s. 279.04 Cr.C . According to them, it is the accused’s behaviour that must be analyzed to detect his or her intent to instill fear in the victim. [ 85 ] Lastly, the appellants criticize the judge’s application of these sections. According to them: (1) there were reasonable and probable grounds to believe that the Manoukians were exercising control over Ms.

Manaye’s movements; (2) there were reasonable and probable grounds to believe that their actions were intended to abusively take advantage of Ms. Manaye’s work; (3) the fact that the Manoukians treated Ms.

Manaye well is irrelevant because the offence does not require proof of actual exploitation; and (4) the definition in s. 279.04 Cr.C . must not be taken into account in analyzing the elements constituting the offence referred to in s. 279.01 Cr.C . [ 86 ] In order to conclude that there are reasonable and probable grounds for believing that an offence has been committed, it is necessary to know the constituent elements of the offence. [ 87 ] At the time the constables made their assessment, there had not yet been a jurisprudential

interpretation of the sections in question. They therefore had to carry out their work by considering the applicable legal text. According to s. 279.01 Cr.C . , the accused must have done certain things: “Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person”, and he or she must have a certain state of mind: “for the purpose of exploiting them or facilitating their exploitation”. [ 88 ]

Section 279.04 Cr.C . defines the exploitation referred to in ss. 279.01 to 279.03 Cr.C .

Exploitation occurs (1) when one person causes another person to work or to offer to work (2) by engaging in conduct that could reasonably be expected to cause the other person to believe that their safety would be threatened if they failed to work or offer to work. [ 89 ] As it appears from paragraph 176 of the trial judgment, the constables gave the term “exploitation” a broad meaning without considering the definition in s. 279.04 Cr.C . [ 90 ] In my view, an ordinarily prudent, diligent and competent police officer in the same circumstances would have read these provisions, concluded that they are interdependent and applied the definition set out in s. 279.04 Cr.C .

I would add that if, after having read this definition, the constables had doubts regarding the

interpretation of the term “exploitation”, they should have consulted their superiors, all the more so given that these were then new provisions of the Criminal Code . In Kosoian , Coté, J., writing for a unanimous Supreme Court, noted that where police officers are uncertain about the law in force, they must make reasonable inquiries: [63] That being said, the expectations that exist for police officers remain high.

Where there is uncertainty about the law in force, it is incumbent on them to make the inquiries that are reasonable in the circumstances , for example by suspending their activities in order to consult with a prosecutor or by rereading the relevant provisions and the available documentation. In principle, an error will be judged

less severely if it is made during an emergency response, or in a situation where public safety is at stake, rather than in the context of a carefully planned operation or the routine application of a by-law. In other words, unless the circumstances require immediate intervention, it is not appropriate to act first and make inquiries later.

I note that — even in an emergency — the fact that conduct seems dangerous to a police officer does not permit the officer to presume the existence of an offence (see Baudouin and Fabien, at pp. 423- 24). [17] [Italics in original; underlining added] [ 91 ] The constables considered Ms. Manaye to be vulnerable because she had little education, she did not speak French or English and she was worried about being deported from Canada and returned to Ethiopia if the authorities discovered her illegal presence here (see para. 178 of the judgment).

As the judge noted, however, it is undeniable that these circumstances were beyond the control of the Manoukians. On the contrary, the Manoukians undertook, at their own expense and to Ms. Manaye’s knowledge, official steps to regularize her status in Canada; they paid for all her personal needs; they transferred money to her family in accordance with the contract signed in Lebanon; Ms. Manaye participated in household tasks like the other family members; she was well treated, respected and not forced to do anything.

It should be noted that the constables were aware of all these facts. [ 92 ] In the judge’s opinion, an opinion that I share, given the uncontradicted evidence, the situation in which Ms. Manaye was living was totally inconsistent with the offences in question. [ 93 ] The judge noted that the constables had not objectively sought to determine whether there were reasonable and probable grounds to believe that an offence had been committed, but rather had focused on the incriminating elements and had disregarded those that could have exonerated the Manoukians.

Her findings are supported by the evidence: [18] [ translation ] [185] In the Court’s opinion, the circumstances in the present case are inconsistent with the forced labour, exploitation or physical or psychological control or violence referred to in the offence of trafficking in persons set out in the Criminal Code . [186] The preponderant evidence shows that the constables did not objectively seek to determine whether there were reasonable and probable grounds to believe that an offence under s. 279.01 Cr.C . had been committed.

They failed to consider the favourable elements revealed during the investigation and, instead, worked on finding all the elements which, according to them, constituted the offence. [187] In doing so, they focused particularly on the evidence that could be used to incriminate the Manoukians and disregarded evidence that could serve to exonerate them.

This approach is mistaken. [188] In the Court’s opinion, an ordinarily prudent and diligent police officer placed in the same circumstances would not, in May 2006, have concluded, based on the information in the investigative file, that there were reasonable and probable grounds to believe that the offences of trafficking in persons had been committed.

At the very least, if there was any doubt, an ordinarily prudent and diligent police officer would have continued the investigation. [ 94 ] The appellants have not shown that the trial judge erred in law or made a palpable and overriding error by concluding that the constables did not have reasonable and probable grounds to believe that the Manoukians had committed an offence related to trafficking in persons.

This ground is therefore dismissed. 4.3 The RCMP press conference and press release [ 95 ] In their appeal brief, the appellants write that the statements made by the RCMP officers at the press conference and in the press release published on the website may have been lacking in subtlety, but they insist on the fact that their duty was not one of perfection.

In their view, they were justified in using these means of information to provide the public with an explanation about the phenomenon of trafficking in persons contemplated in new Criminal Code provisions . [ 96 ] Here is the press release published on the RCMP website, as reproduced in the trial judgment: [19] [ translation ] [260] To assess the AGC’s arguments, it is appropriate to reproduce the press release entitled [ original english ] “Two Alleged Human Traffickers Arrested by the RCMP”: The owners of the house where the presumed victim was being exploited, Nichan Manoukian and his spouse Manoudshag Saryboyajian, face charges of trafficking in persons, receiving material benefit from it, and withholding travel or identity documents.

This is the first time in Canada that human trafficking charges are laid in a case of international scope. The investigation was launched on the basis of information received from the Laval Police Service indicating that a young Ethiopian woman was doing household work in a private residence. The young woman then reportedly confirmed through a third party that her employers were forcing her to work non-stop, that she did not have access to her identity papers, that she was not allowed outside the residence alone, and that she was prohibited from using the telephone.

The woman’s employers, using threats to intimidate her, allegedly told her on several occasions that Canadian authorities would send her back to her country if she talked to anyone about her situation. RCMP investigators, working jointly with the Canada Border Services Agency (CBSA) Intelligence Services, Immigration Division, were able to demonstrate that in 2004, Nichan Manoukian had applied for a temporary resident visa (visitor) on behalf of the young woman. However, further applications for extension of her visitor status were denied. Consequently, the young woman found herself residing illegally in Canada.

Additional evidence was gathered, allowing the police to lay charges against the two alleged human traffickers.

A Growing Form of Crime The RCMP is working in close partnership with the CBSA and other police departments to combat this type of crime. Human trafficking is a fast-growing form of crime. Criminal organizations engage in two kinds of illegal immigration activities: alien smuggling, and trafficking in persons with intent to exploit the victims. Illegal migrants are usually free once they reach their place of destination, whereas victims of human trafficking become captive as in this case.

From Recruiting to Exploiting Victims Human trafficking is performed in three phases, namely recruiting, travel and exploitation, and for four different purposes: sexual exploitation, forced labour, child exploitation and organ removal. [Emphasis added by the trial judge] [ 97 ] I note first of all that the press release (and this is also true of the press conference) was not limited to informing the public about the laying of charges against the Manoukians, explaining the nature of those charges or providing information of an administrative nature about the investigation.

In fact, the press release and the press conference dealt with evidence allegedly gathered during the police investigation, evidence that was patently false. [ 98 ] A press release or press conference to inform the public of the laying of criminal charges should not be used to try the accused in the media. Needless to say, police officers collect evidence for the purpose of a trial in a court of law, not in the media.

If, despite this warning, police officers nevertheless decide to display the evidence they have gathered in front of the media, they may be held civilly liable if they commit a fault by making erroneous or, as in this case, untruthful statements. [ 99 ] I also note, and this is in line with the trial judge’s conclusion, that several “problematic” elements were presented at the press briefing and in the press release: - Ms. Manaye did not have access to her identity papers; - The Manoukians threatened her; - If Ms. Manaye spoke about her situation, she would be deported to Ethiopia; - Ms.

Manaye was forbidden from using the telephone; - Ms. Manaye did not speak the language; - Ms. Manaye worked 24 hours a day, seven days a week; - Ms. Manaye was captive and could not go out alone. [ 100 ] These statements were more than [ translation ] “lacking in subtlety”. They were false and biased and the constables knew it. The following are the most glaring flaws: - Access to identity papers . Ms. Manaye’s legal documents were in an unlocked cabinet in the basement of the Manoukians’ house, next to her bedroom, and she had access to them.

Her passport had been given to the lawyer in charge of her immigration file and could be returned to her at her request, as Ms. Manaye confirmed at the outset in her January 2006 statement. It follows that, contrary to what the police stated, Ms. Manaye had access to her personal documents and could retrieve her passport upon request. - Use of threats . The only threat mentioned during the investigation was the event that Ms. Manaye first recounted during her second interview with the constables on February 14, 2006. She had stated that Mr. Manoukian had threatened her with a knife to the throat.

This was a blatant contradiction of her January 25, 2006 statement that the Manoukians respected her and treated her well. - No talking on the telephone . Ms. Manaye told the constables that she spoke to her fiancé on the phone. She also spoke with her fellow compatriots, Ms. Amaha and Ms. Boyino, on a few occasions and, on two occasions, it was even Mrs. Saryboyajian who had passed the telephone to her. - Ms. Manaye’s captivity . There was nothing in the investigation conducted by the constables to support the notion that Ms. Manaye was captive, as the press release stated without hesitation.

She had a key to the house, she knew the code to enter the garage, she went out of the house to run errands, she walked the dog, she rode around on a scooter, etc. - The threat of deportation from Canada . This refers to the fact that Ms. Manaye’s status in Canada was illegal. However, she knew and understood that the Manoukians had retained, at their expense, the services of a lawyer to regularize her situation following the expiry of her visitor’s visa and that, until then, she had to keep a low profile. - She did not speak the language . Ms.

Manaye’s English was undoubtedly rudimentary, but she understood and spoke it sufficiently to get by. In fact, in her statement she had replied in English to some of the questions posed by Constable Turpin. [ 101 ] The judge’s conclusions regarding the untrue and biased nature of certain elements communicated to the public at the press conference and on the RCMP’s website are amply supported by the evidence. The appellants have not demonstrated a palpable and overriding error in the trial judge’s conclusion. 4.4 The pecuniary and moral damages awarded to Mr. Manoukian

[ 102 ] The trial judge ordered the appellants to pay Mr. Manoukian $146,100 in pecuniary damages, namely $125,000 for loss of income (paras. 357 to 422) and $21,100 for the other losses sustained (paras. 423 to 434). She also ordered them to pay him $150,000 in moral damages (paras. 435 to 466). [ 103 ] The appellants allege that the evidence does not support the $125,000 order for Mr. Manoukian’s pecuniary losses. In particular, they argue that the judge acknowledged that the evidence was incomplete on this issue since Mr. Manoukian was not working at the time of the events and had no real intention to do so.

The appellants also point out that there is a complete lack of evidence of damage mitigation on the part of Mr. Manoukian. Lastly, they argue that the judge already took into account the fact that Mr. Manoukian was not working when she addressed the non-pecuniary losses, which would constitute double compensation. [ 104 ] As regards the damages awarded to Mr. Manoukian for injury to reputation, the appellants point out that the analysis must be based on an objective assessment and requires proof that third parties had a concrete negative perception of Mr. Manoukian’s reputation.

However, no one testified about Mr. Manoukian’s reputation. Rather, the evidence shows that the Manoukians’ acquaintances supported the family. Moreover, the rapid withdrawal of the charges was publicized in the media. Mr. Manoukian himself contributed to the broadcasting of the charges by giving interviews during the proceedings. According to the appellants, no amount should have been awarded to him for injury to reputation. [ 105 ] With respect to the other moral damages, the appellants argue that the judge’s award of $150,000 in this regard was arbitrary.

They argue that the judge failed to consider that the depressive symptoms presented by Mr. Manoukian were related to the civil suit and not to the criminal charges, that he was functional in his day-to-day life, and that the charges had been quickly withdrawn. The maximum award in similar cases is $75,000. [ 106 ] Before considering the appellants’ various complaints, I would point out that the standard of review with respect to damages is stringent: [ translation ] The review on appeal of the assessment of damages made by a trial judge calls for a great deal of deference.

This Court recently noted that the leading case in this regard is still Laurentide Motels Ltd. v. Beauport (City) . The standard of review is “very strict and favours the trial judge’s determination”. This high threshold is justified by the fact that the trial judge has a broad discretionary power and by the “discretionary and highly factual nature

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