2013 QCCA 46, 2013 QCCA 46

Unofficial English Translation Urizar c. R. 2013 QCCA 46 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004763-106 (505-01-084654-090) DATE: April 16, 2013 CORAM: THE HONOURABLE ANDRÉ ROCHON, J.A. PIERRE J. DALPHOND, J.A GUY GAGNON, J.A. JUAN PABLO URIZAR APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT OF CORRECTION [ 1 ] A clerical error inadvertently occurred in paragraph [3] of the judgment rendered on January 16, 2013, and in paragraph [97] of the reasons of Rochon, J.A.: the reference to paragraph 364(1)(1.1)(

b) Cr. C. must be modified to read 346(1)(1.1)(

b) Cr. C. : [ 2 ] Therefore, the COURT CORRECTS the judgment of January 16, 2013, and SUBSTITUTES the following paragraph for paragraph [3] thereof: [3] ALLOWS the appeal for the sole purpose of entering a conditional stay of proceedings on the following counts: Threats to cause death or bodily harm – 264.1(1)(a)(2)(

a) Cr. C. Possession of a weapon for the purpose of committing an offence – 88(2)(

a) Cr. C. Extortion – 346(1)(1.1)(

b) Cr. C. [ 3 ] The same correction is made in paragraph [97] of the reasons of Rochon, J.A. ANDRÉ ROCHON, J.A. PIERRE J. DALPHOND, J.A GUY GAGNON, J.A. Mtre Karl-Emmanuel Harrison For the appellant Mtre Magalie Cimon Criminal and penal prosecuting attorney For the respondent Date of hearing: October 31, 2012

Unofficial English Translation Urizar c. R. 2013 QCCA 46 COURT OF APPEAL CANADA PROVINCE OF QUEBEC MONTREAL REGISTRY No.: 500-10-004763-106 (505-01-084654-090) DATE: January 16, 2013 CORAM: THE HONOURABLE ANDRÉ ROCHON, J.A. PIERRE J. DALPHOND, J.A. GUY GAGNON, J.A. JUAN PABLO URIZAR APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [1] On appeal from a judgment of the Court of Quebec, Criminal and Penal Division, District of Longueuil (the Honourable Judge Claude Provost) rendered on August 13, 2010, that found the appellant guilty of the following thirteen counts: Robbery – 344(1)(

b) Cr. C. Assault with a weapon – 267(

a) Cr. C. Assault causing bodily harm – 267(

b) Cr. C. Threats to cause death or bodily harm – 264.1(1)( a )(2)(

a) Cr. C. Sexual assault – 271(1)(

a) Cr. C. Sexual assault causing bodily harm – 272(1)( c )(2)(

b) Cr. C. Trafficking in a substance – 5(1)(3)(

a) C.D.S.A. Forcible confinement – 279(2)(

a) Cr. C. Possession of a weapon for the purpose of committing an offence – 88(2)(

a) Cr. C. Trafficking in persons – 279.01(1)(

b) Cr. C. Receiving a material benefit – 279.02 Cr. C. Extortion – 346(1)(1.1)(

b) Cr. C. Criminal harassment – 264(1)(3)(

a) Cr. C. [2] For the reasons of Rochon J.A., in which Dalphond and Gagnon JJ.A. agree, THE COURT : [3] ALLOWS the appeal for the sole purpose of entering a conditional stay of proceedings on the following counts: Threats to cause death or bodily harm – 264.1(1)( a )(2)(

a) Cr. C. Possession of a weapon for the purpose of committing an offence – 88(2)(

a) Cr. C. Extortion – 346(1)(1.1)(

b) Cr. C.

ANDRÉ ROCHON, J.A. PIERRE J. DALPHOND, J.A. GUY GAGNON, J.A. Mtre Karl-Emmanuel Harrison For the appellant Mtre Magalie Cimon Criminal and penal prosecuting attorney For the respondent Date of hearing: October 31, 2012 REASONS OF ROCHON, J.A. [ 4 ] The appellant (Urizar) was found guilty of the following thirteen counts: Robbery – 344(1)(

b) Cr. C. Assault with a weapon – 267(

a) Cr. C. Assault causing bodily harm – 267(

b) Cr. C. Threats to cause death or bodily harm – 264.1(1)( a )(2)(

a) Cr. C. Sexual assault – 271(1)(

a) Cr. C. Sexual assault causing bodily harm – 272(1)( c )(2)(

b) Cr. C. Trafficking in a substance – 5(1)(3)(

a) CDSA Forcible confinement – 279(2)(

a) Cr. C. Possession of a weapon for the purpose of committing an offence – 88(2)(

a) Cr. C. Trafficking in persons – 279.01(1)(

b) Cr. C. Receiving a material benefit – 279.02 Cr. C. Extortion – 346(1)(1.1)(

b) Cr. C. Criminal harassment – 264(1)(3)(

a) Cr. C. [ 5 ] In his appeal, Urizar asks the Court to set aside the verdict and to acquit him on all counts. [ 6 ] In the alternative, he asks the Court to enter a verdict of acquittal on the following counts: Trafficking in persons – 279.01(1)(

b) Cr. C. Receiving a material benefit – 279.02 Cr. C. Extortion – 346(1)(1.1)(

b) Cr. C. [ 7 ] And to enter a conditional stay on the following counts: Possession of a weapon for the purpose of committing an offence – 88(2)(

a) Cr. C. Threats to cause death or bodily harm – 264.1(1)( a )(2)(

a) Cr. C. [ 8 ] The prosecution concedes that two counts are duplicative. It therefore asks the Court to allow the appeal for the sole purpose of entering a conditional stay on the following counts: Possession of a weapon for the purpose of committing an offence – 88(2)(

a) Cr. C. Extortion – 346(1)(1.1)(

b) Cr. C. [ 9 ] As for the convictions on all the other counts, it asks that they be upheld.

THE EVIDENCE [ 10 ] It is a classic case. A young woman is seduced by a young man. Little by little, he skillfully manoeuvres her into dancing nude for his material benefit alone. She is then sucked into a maelstrom from which she eventually escapes, but not without difficulty. [ 11 ] The events began in January of 2009 and ended in August of the same year, when the young woman filed a complaint with the police. [ 12 ] Urizar was 25 years old at the time. He became acquainted with the complainant in a bar. The complainant had just turned 18 years of age. At the beginning of the relationship, Urizar was kind.

He showered her with gifts. He told her that he worked for his father's company. He carried a thick wad of cash and drove a Jaguar. [ 13 ] The complainant was living in Longueuil with her parents and was attending adult education classes to obtain her high school diploma. She had a few problems at home and was a witness to her parents’ arguments.

The complainant was particularly susceptible to Urizar's gifts (restaurants, clothes, hairdresser, etc.), as she had no income and her parents could not give her these things. [ 14 ] About three weeks after their relationship began, the complainant wondered what she could do to earn as much money as him. Urizar suggested that she dance nude. She was persuaded. Urizar drove her to the residence of his friend Francis, the pimp of a certain Andréanne, with whom she would dance. [ 15 ] Urizar offered her cocaine to help her overcome her shyness and perform well. She accepted.

Francis and Urizar drove the two women back to the bar where they were to work. [ 16 ] Then began, for the complainant, a slow decent into a world that was entirely new to her. She was forced by both verbal and physical abuse to dance nude at a frequency that increased gradually. She had to turn all her earnings over to Urizar. If she failed to do so, Urizar would take the money from her by force and beat her. [ 17 ] Gradually, Urizar assumed more and more control over the complainant's actions and movements. He exercised this control through acts of physical violence or intimidating words.

To illustrate, I can put it no better than the trial judge, who related some of these episodes: [ translation ] She decided to broach the subject of the money he was taking from her and asked him to give her back the money he had taken from her. The accused became angry and told her that if she did not want to give him her money, she could just go back to her mother's house. And he began to strike her on the head and on the ribs, and to pull her hair. He slammed her head against the dashboard. The car stopped at a friend's residence and the accused went up to his apartment.

The complainant followed him up the stairs. He pushed her and she tumbled down the stairs, injuring her knees, and she began to run, arriving in tears at her parents' home, which was nearby. She explained that she was in shock. She was vomiting blood, she was dizzy, her ribs hurt, and she had blood in her hair. She says she did not have the courage to file a complaint because she loved the accused. ... At Luigi's apartment, where she stayed for two and half weeks, she occupied the children's room and slept on a deflated inflatable mattress.

The accused often came to sleep there and started to gain more and more control over her and her life. He forbade her to give her new address to her mother, he took away her cell phone when he left the apartment, and he insisted that she drop out of school. He told her that he had all rights over her, that she belonged to him, that he could do anything he wanted with her. He became increasingly violent with her, both physically and verbally. He threatened to kill her. And he told her that if she reported him to the police, for a few vials of crack he could easily find a contract killer to kill her.

He told her that if she ran away, he would find her and stab her. She feared him to the point where if he decided something, she had to listen or she would receive blows. ... One night, she was returning from a strip club with an employee of the club. It was a long trip and the accused was waiting for her at Luigi's apartment. He demanded that she give him the money she had made. She refused to give it to him, he pulled it out of her hands, and she made a comment that he didn't appreciate. He punched her violently in the face, slapped her, and pulled her hair, while she asked him to give her back the money.

He tossed the bills all over the place and ordered her to pick them up. Another time, he wanted her to give him four hundred dollars ($400) to give to his brother, who had to have his car repaired. She didn't want to. He beat her and tore the money out of her hands. One evening, when she had earned only two hundred dollars ($200), the accused beat her, took her money, and told her that she had to bring back at least three hundred dollars ($300). He told her she did not even know how to play a whore. ... He gained more and more control over her person.

He wanted her to have his name tattooed on her body because, he said, he wanted the other guys in the bars to know that she belonged to him. He decided the nights she had to dance. He chose her dancer name. One day, he put her on his shoulder and amused himself by walking up and down the stairs repeatedly and spinning her around. He

kissed her violently, to the point of hurting her lips. He pushed her into a door and she ended up on all fours on the floor. He stuck his fingers into her anus. ... At Liu's suggestion, they went to a motel on the South Shore. The complainant wanted to smoke, but she did not have a light. When Liu walked out to get matches from his car, the complainant heard a knock on the door. It was the accused, who was clearly angry. He grabbed her by the head and slapped her violently on the face. He took off his belt and hit her thighs. When she was on the bed, he stuck a finger in her anus and pinched her breasts.

She says she was beaten for about thirty minutes. She was exhausted. She couldn't move her body and she saw stars. The accused filled a bucket with water and threw it in her face. When she regained consciousness, he decided to take her to his apartment. She started to run, but he caught her and forced her into his car. He stopped at Liu's place, where the complainant gathered her personal effects. It was then that the complainant's mother managed to reach her by phone. The complainant told her that she could not speak to her. When they arrived at the accused's apartment, he started to hit her again.

He went to get a taser gun and put it in her face, against her forehead and against her abdomen. He then put it next to her head and pulled the trigger. He squeezed her throat to the point of strangulation, lifting her off the ground. She lost consciousness. He would often say to her: [ translation ] "You want to go home, then go." But when she got ready to leave, he would stop her by putting his arms around her. It was like a game that he seemed to find very amusing. One night, she managed to escape. She telephoned her mother and ran to hide in a park so that her mother could come and get her. ...

When she was at the accused's apartment and his brother Alfonzo was there also, he continued to abuse her and even forced her to take an ice-cold shower. He confined her to his bedroom. When she tried to get out, he pushed her back in the room and closed the door. She says she was confined several times for hours and even for entire days. [ 18 ] The complainant was constantly torn between her love for Urizar and the mistreatment to which he subjected her. After each episode of abuse or confinement, she tried to leave him. She took shelter at her parent's home.

Urizar then became affectionate again and the complainant softened, to use her expression, and returned to him. [ 19 ] At times, the situation could be described as outlandish if it were not so tragic. On one occasion, Urizar followed the complainant's mother's car, intercepted it, and forced the complainant to follow him. On another, Urizar went to her parent's home to try to get her back, despite the verbal objections and physical obstructions of her father and mother. [ 20 ] The complainant summarized her situation in these terms: [ translation ] ... A. But look.

It's… you really have to understand that I was like a slave. Imagine that. Stripping every night. In the end, to be groped by customers, okay. And in the end, for nothing. Because Pablo beat me and he took all my money. That's something, you know! That's something. When you think about it, I … Q. Because, basically, you, you did that for a lot of money, and to buy whatever you wanted? A. I could never buy anything for myself with that money. He took it all from me. He took it all from me. There was maybe... At the beginning, $20 or so a week or... it lasted maybe two weeks, but I don't know how much money.

But it was more than fifteen, twenty thousand dollars. Ah... ... [ 21 ] At the request of the trial judge, the prosecution related the different counts to the evidence: [ translation ] Robbery . Episode where Urizar violently pushed her onto a bed at Francis's apartment and took her money. Episode where, when she returned from an evening of work as a dancer, he beat her to take her money and give it to his brother. Assault with a weapon . Episode where, when she took shelter in a motel with a friend, Urizar struck her on the head, slapped her, and hit with a belt.

Episode where he put a taser gun against her face and her abdomen and then deliberately discharged it close to her head. Episode where he struck her on the back with a broom. Assault causing bodily harm . Episode where she asked Urizar to give her back her money and he then struck her on the head and on the ribs and pulled her hair in the car. When she exited the car, he followed her up the stairway of an acquaintance's residence and pushed her down the stairs (the complainant took shelter in a centre for battered women and consulted a doctor after this assault) .

Episode where Urizar slapped her on the face so hard that his finger marks were visible on her cheek, and she fell and hit her head. Threats to cause death or bodily harm. Conduct that Urizar regularly engaged in with her.

Sexual assault . Episode where Urizar, after having struck her with a belt, pinched her breasts in the presence of a friend. Episode where Urizar had full sexual intercourse with her while tightly grabbing her throat. Episode where she had non-consensual intercourse with him while he was drunk. Sexual assault causing bodily harm . Episode where Urizar, during a dispute, violently inserted his fingers into her anus and caused her to bleed. Trafficking in a substance . Urizar gave her cocaine to induce her to dance nude. Forcible confinement .

Episode where Urizar confined her in his apartment or in his bedroom and prevented her from exiting. Possession of a weapon for the purpose of committing an offence . Weapons used for the assault with a weapon (belt, taser gun and broom). Trafficking in persons and receiving a material benefit. Related to all the evidence. Extortion. The fact that Urizar threatened the complainant to force her to dance nude. Harassment.

Repeated calls when the complainant took shelter in a centre for battered women. [ 22 ] The Crown's case was supplemented by the filing of the complainant's medical report and items seized at Urizar's residence, including photographs of the complainant that were apparently taken for the purposes of prostitution.

Also found there were messages sent by Urizar to the complainant after she filed her complaint, including the following: [TRANSLATION] I love you, you're the most beautiful, so I don't know what you think, but I'm not foolish enough to let a princess like you leave me, and by the way, I received offers for the car, don't worry, you'll get your cash. I want to live with you, work honestly, have fun with you, I don't want you to work in the clubs any more... I'm ready to go into therapy with you to save our relationship... I hope you're not going to get me into trouble, I love you, I want things to change.

Forget about dancing in the clubs, I found a job for you at my mother's. [ 23 ] Urizar did not testify in his defence. He adduced in evidence the complainant's school attendance record and her telephone record which showed, inter alia , that in July of 2009, Urizar made 66 calls to the complainant. She called him 20 times during the same period. [ 24 ] Finally, Urizar called as a witness a girlfriend who said she was in love with him. She said that the complainant caught them by surprise in June 2009. She then apparently slapped Urizar while insulting him.

THE JUDGMENT UNDER APPEAL [ 25 ] To be fair to the trial judge, it is important to clarify the position taken at the time by counsel for the defence. In their view, the entire case turned on credibility. If the judge believed the complainant and found her testimony to be reliable, he had to find Urizar guilty; if not, he had to acquit him. We shall see that, on appeal, Urizar's strategy became more refined. [ 26 ] The trial judge began his analysis by placing the case in its proper context with the following questions: Is the complainant credible and reliable?

Does her testimony prove all of the essential elements of the fourteen counts beyond a reasonable doubt? Based on the evidence as a whole, can the accused be found guilty beyond a reasonable doubt? [ 27 ] He pointed out that the complainant's testimony contained hesitations, omissions, memory lapses, and exaggerations. He attributed them in part to the events that the young woman had experienced over the course of nine months. He added that, on the other hand, a perfectly detailed and chronologically well-ordered account would have been worrisome in the circumstances.

He believed the complainant was honest and that her testimony as a whole was reasonable, logical, and consistent. [ 28 ] With respect to the essential elements of each count, the judge repeated that he believed the complainant. He said that the text messages sent by Urizar show that he knew that she had been dancing in clubs. Urizar acknowledged that he owed money to the complainant. The judge added that the medical report was consistent with the fall down the stairs.

Similarly, her school record confirmed the allegation that she had stopped going to school at Urizar's request. [ 29 ] Concerning the counts relating to trafficking in persons, he found that the evidence showed beyond a reasonable doubt that the accused had exercised influence over the complainant's movements to encourage her to work as a nude dancer, in a context of physical, psychological, sexual and material abuse, from which it is reasonable to conclude that a refusal on her part to engage in the activity concerned endangered or would have endangered her safety. To reach this conclusion, he relied on the

interpretation given by this Court in Perreault to the phrase “control, direction or influence” in the context of a charge of procuring. [1] [ 30 ] The trial judge also concluded that the evidence showed beyond a reasonable doubt that the accused derived a material benefit, knowing that it came from the influence he exercised over the complainant's movements with the intention of exploiting her. [ 31 ] Accordingly, he found Urizar guilty of all the counts against him, except for the count of aggravated assault. He said he doubted that the injuries endangered the complainant's life.

THE GROUNDS OF APPEAL [ 32 ] In his first ground of appeal, Urizar argues that there was a miscarriage of justice within the meaning of section 686(1)( a )(iii) Cr. C. He maintains that the conviction was not based on the evidence.

[ 33 ] In his second ground of appeal, Urizar submits that the judge erred by allowing the complainant to testify outside the court room. [ 34 ] At the hearing, counsel for Urizar focussed primarily on his third ground of appeal. He argues that the convictions on all the counts relating to trafficking in persons concern migrants who are moved or hidden while being obliged to provide forced labour. Without forced movement, there is no crime. I will have the opportunity to examine this issue later; it is the real issue under appeal. [ 35 ] The fourth ground concerns the count of extortion.

According to Urizar, there is a lack of evidence that the complainant was induced to dance nude by means of threats, accusations, or violence. [ 36 ] Finally, Urizar asks the Court to enter a conditional stay on the count of uttering threats. He contends that this count duplicates the counts of robbery, trafficking in persons, and extortion. The respondent, on the other hand, would agree to a stay on the count of extortion. [ 37 ] The respondent also concedes that there are grounds to enter a conditional stay on the count of possession of a weapon for the purpose of committing an offence. ANALYSIS (

i) Testimony outside the court room [ 38 ] I will begin by considering the ground of appeal concerning the procedure followed at the complainant's hearing. [ 39 ]

Section 486.2 Cr.

C. provides: 486.2 (1) [ Exclusion – témoins âgés de moins de dix-huit ans ou ayant une déficience ] Par dérogation à l'article 650, dans les procédures dirigées contre l'accusé, le juge ou le juge de paix ordonne, sur demande du poursuivant ou d'un témoin qui soit est âgé de moins de dix-huit ans, soit est capable de communiquer les faits dans son témoignage tout en pouvant éprouver de la difficulté à le faire en raison d'une déficience mentale ou physique, que ce dernier témoigne à l'extérieur de la salle d'audience ou derrière un écran ou un dispositif permettant à celui-ci de ne pas voir l'accusé, sauf si le juge ou le juge de paix est d'avis que cela nuirait à la bonne administration de la justice. (2) [ Autres témoins ] Par dérogation à l'article 650, dans les procédures dirigées contre l'accusé, il peut rendre une telle ordonnance, sur demande du poursuivant ou d'un témoin, s'il est d'avis que cela est nécessaire pour obtenir de ce dernier un récit complet et franc des faits sur lesquels est fondée l'accusation. 486.2 (1) [ Testimony outside court room – witnesses under 18 or who have a disability ] Despite

section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice. (2) [ Other witnesses ] Despite

section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor or a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of. [ 40 ] Despite

section 650 Cr. C. ,

section 486.2(2) Cr. C. allows the judge to order a witness of full age who does not have a particular disability to testify outside the court room if it is necessary to obtain a full and candid account from the witness of the acts complained of. [ 41 ] Enacted in 2005, this provision is a key element of Bill C-49,

An Act to amend the Criminal Code (trafficking in persons) . In Legislative

Summary LS-508 , the Parliamentary Information and Research Service described the objective of this provision: These witness protection provisions attempt to shelter marginalized and vulnerable victims of trafficking from the direct and indirect influence of their exploiters, as well as facilitating their testimony within the often intimidating and rigid environment of Canada’s justice system. Such provisions may also assist law enforcement agencies in convincing unwilling witnesses to testify. [2] [ 42 ] The constitutional validity of

section 486.2 Cr. C. was confirmed by the Supreme Court in 2010 in R. v. J.Z.S . [3] The Supreme Court agreed with the reasons of the Court of Appeal for British Columbia: the accused does not have a constitutional right to see the witness face to face, and the use of testimony delivered outside of the court room does not compromise the fairness of the trial. [4] [ 43 ] Urizar believes that it was not necessary to testify outside the court room to obtain a full and candid account of the facts in this case and that the judge acceded to a preference of the complainant.

[ 44 ] This argument must fail. [ 45 ] I note that the trial judge first refused to order the in camera hearing requested by the prosecution.

He then acceded to the request to testify out of court after observing the complainant's difficulties in testifying in the presence of Urizar. [ 46 ] After stating the applicable rules of law, he made the following observations: [ translation ] (1) the complainant had considerable difficulty testifying in the presence of the accused, to the point where her testimony had to be frequently interrupted; (2) the motion for an in camera hearing was denied, and the only persons present were the two brothers of the accused and an unknown woman with them; (3) the complainant has asked a police officer to act as a physical screen between her and the accused; (4) the complainant shows obvious signs of stress and anxious behaviour that she did not exhibit when she was questioned by the police; (5) since the events, the complainant has been seeing a psychologist, who has concluded that she is suffering from post-traumatic stress; (6) the complainant felt the need to consult her psychologist after her first day of testimony; (7) the charges against the accused were objectively and subjectively serious.

The intimate relationship that existed between the parties cannot be ignored. [ 47 ] The trial judge was in a better position to assess the need to testify outside of court. He gave ample reasons for his decision.

I do not find any error of law or fact that would justify our intervention. (ii) Misapprehension of the evidence [ 48 ] At the hearing, counsel for Urizar correctly conceded that, based on the trial judge's assessment of the credibility and reliability of the complainant's testimony, this ground of appeal is unlikely to succeed. [ 49 ] I will limit myself to a few observations. [ 50 ] Misapprehension of the evidence by the trial judge must play an essential

part in the finding of guilt to result in the intervention of an appellate court. [5] The assessment of the facts and, more particularly, the assessment of credibility are at the sole discretion of the trial judge. [ 51 ] The Court of Appeal cannot intervene because of a mere divergence of opinion. [6] It must consider the trial judge's approach and reasoning and, in the absence of an error of law, a palpable and overriding error in the assessment of the evidence, or insufficiency in the trial judge’s reasons, it must refrain from intervening. [7] [ 52 ] As indicated above, the trial judge believed the complainant on all the essential elements of the thirteen counts.

He gave lengthy reasons for his decision. He noted the complainant's hesitations, omissions, memory lapses, and exaggerations. He attributed them in part to the complainant's disorganized lifestyle during the period in question and to the abuse suffered. He deemed that, on the other hand, a perfectly detailed and chronologically well-ordered account would have been worrisome in the circumstances.

He found the complainant to be honest and considered her testimony to be reasonable, logical, and consistent. [ 53 ] The trial judge also found that many pieces of evidence were consistent with the complainant's version: the medical consultation, the school attendance report, and the text messages sent by Urizar. [ 54 ] Concerning the defence's argument that the complainant made up all the acts of abuse because of an incident of jealousy that occurred in June 2009, he wrote: [ translation ] After having observed the complainant, heard her, and listened to her for several days, the Court believes her to be incapable of the hypocrisy, Machiavellian behaviour, and cynicism that the Defence attributes to her. [ 55 ] In any case, the defence's argument is unsound.

A medical report shows that the complainant consulted a doctor in March 2009 and that she complained of domestic violence, whereas the jealousy incident, the alleged reason for vengeance, did not occur until June 2009. [ 56 ] Finally, Urizar claims that the judge disregarded some flagrant contradictions in the complainant's testimony.

According to Urizar, she contradicted herself about the clothes she was wearing when he allegedly inserted his fingers into her anus; she could not say what happened to the used tampon she had been wearing during the episode in the motel, and she contradicted herself concerning the episode involving the rollerblades. Furthermore, she clearly exaggerated her injuries when she said that the doctor [TRANSLATION] "couldn't get over it", whereas the consultation report indicates only erythema of the knees.

According to the appellant, her testimony as a whole is vague and contains more vindictive epithets directed at Urizar (manipulator, pimp, violent, crazy, etc.) than facts. In short, in Urizar's words, [TRANSLATION] "she’s making empty insinuations". [ 57 ] These arguments are insufficient to justify the Court's intervention. The complainant underwent an aggressive and quick cross- examination, the relevance of which was at times debatable. She did not so much contradict herself as fail to answer certain questions.

For example, she could no longer remember what clothes she was wearing during the incident where Urizar stuck his fingers into her anus. Realizing that a logical answer was expected of her, she speculated: [TRANSLATION] …I don't remember how I was dressed, I may have been wearing a dress, I may have been wearing pants, he may have taken them down, but now, I don't remember. But I know what he did and I remember what he did. [ 58 ] On the whole, I do not find any error of law or any palpable and overriding error of fact in the apprehension of the evidence. While some qualifications could be added, they certainly did not play an essential

part in the determination of the accused's guilt. (iii) Trafficking in persons [ 59 ] Bill C-49,

An Act to amend the Criminal Code (trafficking in persons) came into force in November of 2005. It created three offences that specifically target trafficking in persons: trafficking in persons (section 279.01), material benefit (section 279.02) and withholding or destroying documents (section 279.03). The first two sections concern us. They state: Traite des personnes 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) d’un emprisonnement à perpétuité, s’il enlève la personne, se livre à des voies de fait graves ou une agression sexuelle grave sur elle ou cause sa mort lors de la perpétration de l’infraction;

b) d’un emprisonnement maximal de quatorze ans, dans les autres cas. Consentement

(2) Ne constitue pas un consentement valable le consentement aux actes à l’origine de l’accusation. Bénéfice matériel 279.02 Quiconque bénéficie d’un avantage matériel, notamment pécuniaire, qu’il sait provenir de la perpétration de l’infraction visée au paragraphe 279.01(1) commet une infraction passible, sur déclaration de culpabilité par voie de mise en accusation, d’un emprisonnement maximal de dix ans. Trafficking in persons 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 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 fourteen years in any other case. Consent

(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid. Material benefit 279.02 Every person who receives a financial or other material benefit, knowing that it results from the commission of an offence under subsection 279.01(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than ten years. [ 60 ] When the charges were brought against Urizar, exploitation within the meaning of sections 279.01 to 279.03 Cr. C. was defined as follows: Exploitation 279.04 Pour l’application des articles 279.01 à 279.03, une personne en exploite une autre si :

a) elle l’amène à fournir ou 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;

b) elle l’amène, par la tromperie ou la menace ou l’usage de la force ou de toute autre forme de contrainte, à se faire prélever un organe ou des tissus. Exploitation 279.04 For the purposes of sections 279.01 to 279.03, a person exploits another person if they (

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

b) cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed. [ 61 ] These provisions have never been interpreted by an appellate court in Canada.

[ 61 ] These provisions have never been interpreted by an appellate court in Canada. [ 62 ] The principle is well known: "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". [8] In federal law, this principle is buttressed by

section 12 of the

Interpretation Act , [9] which provides that every enactment is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects. Today, the traditional rule of the criminal law whereby, in cases of doubt, the

interpretation which is the more favourable to the accused must be adopted has given way to this general principle. [10] [ 63 ] The legislative origin of the provisions in question bear mentioning here. [ 64 ] Canada is one of the first countries to have ratified, in May 2002, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. [ 65 ] In Legislative

Summary LS-508E, the Parliamentary Information and Research Service of Canada pointed out that cross-border movement is the focus of this Protocol: Although the definition does not specifically require cross-border movement, this is clearly the focus of the Protocol, given its context within the Convention Against Transnational Organized Crime and its focus on border control. [11] [ 66 ] Under

Article 5 of the Protocol , each State Party shall adopt such legislative measures as may be necessary to establish as criminal offences the conduct set forth in

Article 3 (definition of trafficking in persons), in accordance with the principles of its own legal system. [ 67 ] State Parties have integrated the Protocol quite differently in their domestic laws. For example, Australia has created different offences according to whether the victim is brought to Australia, is sent out of Australia, or is moved within Australia. [12] In the United Kingdom, distinctions relating to the crossing of borders have also been established.

The notion of trafficking in persons is integrated into many different provisions concerning sexual and immigration offences; trafficking in prostitution, trafficking into the UK for sexual exploitation, trafficking out of the UK for sexual exploitation, trafficking immigrants for exploitation, and so on. [13] [ 68 ] For its part, the Canadian Parliament has opted for general legislative measures that do not relate the offences to cross-border movement or to a specific activity. [ 69 ] The central element of the provisions in question is the criminalization of exploitation.

The acts mentioned in the first paragraph of

section 279.01 Cr. C. constitute criminal offences only if they are committed for the purpose of exploiting or facilitating the exploitation of a person, regardless of whether or not exploitation actually ensues. [ 70 ] This

interpretation is in line with the wording of

section 279.01 Cr. C. It is, moreover, in keeping with the intention unanimously expressed by Parliament when Bill C-49 was passed: The Honourable Paul Harold Macklin (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada (House of Commons): Human trafficking is all about the exploitation of its victims . … Bill C-49 recognizes this exploitation in a very real and concrete way and would make exploitation a key element of the offence .

As defined by Bill C-49, exploitation means causing people to provide labour or services, such as sexual services, by engaging in conduct that could reasonably be expected to cause those people to fear for their safety or that of someone known to them. [14] The Honourable Judy Sgro (House of Commons): Bill C-49 also proposes to define exploitation as central to the main offence . This is very important, because we know that the crime of human trafficking is always about exploitation of the victims. Bill C-49, in my opinion, properly defines the most reprehensible aspect of this crime.

Whether victims are exploited for forced labour, for sexual services or for human organs or tissue, traffickers exploit the lives and the souls of their victims for profit. [15] The Honourable Mobina S. B. Jaffer (Senate): The offences proposed by Bill C-49 are an attempt to strike at the very root of human trafficking and the reason that it is so sickening — the exploitation of its victims. Perhaps more than anything else exploitation is at the heart of this criminal conduct.

While it may be part of what we are talking about, human trafficking is more than just recruiting and moving individuals unlawfully; it is really all about engaging in that conduct for the purpose of exploiting the victim . It is exploitation from which those involved in human trafficking draw their profits, and it is exploitation of the victim that makes it such a deplorable activity.

To paraphrase the work of the European Union's Experts Group of Trafficking in Human Beings, it is the forced aspect of labour or services, including forced prostitution, which is the key element to the definition of trafficking as reflected in the trafficking protocol. I would say it is the key element of Bill C-49 , and that, in my opinion, is especially welcomed.

"Exploitation" is defined in Bill C-49 to mean causing another person to provide or offer to provide labour or services by engaging in conduct that can reasonably be expected to cause that person to fear for their safety or someone known to them if they fail to provide labour or services. It also includes causing them, by means of deception or the use of threat of force or any other form of coercion, to have an organ or a tissue removed. This definition is broad, and rightly so, because we know that human trafficking can take many forms . [16] (Emphasis added)

[ 71 ] Exploitation is defined in

section 279.04 Cr. C. An objective test is used to assess the actions leading to the exploitation. Victims are caused to provide or offer to provide labour or services by engaging in conduct that, in light of the circumstances, can reasonably be expected to cause the victims 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 services. [ 72 ] An offence may be committed in different ways.

It may be an isolated act or it may be coordinated acts, as long as the act or acts are committed for the purpose of exploiting a person or facilitating their exploitation. Thus, someone who recruits or harbours may be charged with trafficking in persons if they knew that the act was committed for the purpose of exploiting a person or facilitating their exploitation. [ 73 ] Nor need there be any movement of persons as such for an offence to be committed.

In its Information Sheet for Law Enforcement – Criminal Code Trafficking Offences , the Department of Justice specifies that trafficking in persons may occur entirely within Canadian borders and that no movement of victims is required: Victims need not have crossed the border into Canada . Trafficking may occur entirely within Canadian borders . No movement of victims is required. For example, harbouring or exercising control, direction or influence over them to exploit them or facilitate their exploitation is sufficient. [17] (Emphasis added) [ 74 ] In its first part,

section 279.01 Cr. C. uses terms that reflect a specific action: recruits, transports, transfers, receives, holds, conceals, harbours. The second part of the

section suggests a situation that results from a series of acts rather than an isolated act: exercises control, direction or influence over the movements of a person. These latter terms evoke power, control, or dominance over the person and their movements. [ 75 ] Here, Parliament uses the same words as it does in connection with procuring in section 212(1)(

h) Cr. C. : "for the purposes of gain, exercises control, direction or influence over the movements of a person ...". In Perreault v. R . , [18] this Court defined the essential elements of that offence in these terms: [TRANSLATION] The element of control refers to invasive conduct, a power that leaves the controlled person with little choice. This conduct therefore includes acts of direction and influence. Direction is exercised over the movements of a person when rules or behaviours are imposed.

The exercise of direction does not preclude the possibility that the directed person has latitude or a measure of discretion. The exercise of influence includes less constraining conduct. Any action exercised over a person for the purpose of aiding, abetting or compelling that person to engage in prostitution would be considered an influence. [ 76 ] It should be noted that Parliament uses the same expression in connection with trafficking in persons without adding elements relating to forced movement or to situations akin to those of a migrant. Rather, it appears from the wording of

section 279.01 Cr. C. that the offence may be committed by actions which serve, to varying degrees, to limit the movements of a person for the purpose of exploiting them or facilitating their exploitation. [ 77 ] I conclude that the

interpretation of

section 279.01 Cr. C. proposed by the appellant must be rejected. It appears neither from the wording of the provision nor from the objectives sought by Parliament that the offence of trafficking in persons is limited to cases of forced movement akin to those of a migrant. [ 78 ] In the present case, the evidence shows that Urizar's power over the complainant took different forms. It is important to understand its progression. [ 79 ] It all began with a seduction. A few weeks later, Urizar urged the complainant to dance nude. She agreed.

Then, in the words used repeatedly by the trial judge: Urizar gained more and more control over the complainant. [ 80 ] The control was physical at first. It was manifested by repeated acts of physical violence, together with acts to confine the complainant, to prevent her from leaving a place, or to get her back when she attempted to flee. [ 81 ] As an example, I refer to the episode where the complainant tried to flee. She had called her mother for help: [ translation ] And Mom said to me, where are you now, where are you, so I tried to explain the route I had taken, and she ended up coming.

So I ran to her car, I got in, and we left, we went back the way she had come, and then, he arrived, just like that... he was in his Jaguar, he was behind us, and he was tailing us in his car. And I suddenly recognized him, it was his Jaguar. So I panicked, and my mother told me to put my head down, I put my head down and we kept driving. Then my mother said, I'm taking you to the police station, [complainant's name], that's for sure, you have to file a complaint, and she said, you can clearly see that he's crazy. ... [ 82 ] The complainant did not file a complaint at that time.

She explained to her mother that she was too scared because Urizar had threatened to kill her. In her testimony, she explained why she feared him: [TRANSLATION] ... he said things to me like, if you leave my place, I'll find you and I'll kill you, I'll stab you, wherever you go, I'll find you, you know, he would tell me, anywhere, and he emphasized, wherever you go, I'll find you. That's what he told me. [ 83 ] On another occasion, the complainant explained:

[translation] ... and he blocked me in the stairway like that, and she was in the doorway. So I tried to pass, and I said, no, I want to go home, I want togo home, but he wanted me to go back and dance that evening. He said, you're not going anywhere, go back inside. [84] The evidence reveals many incidents where Urizar exerted strong psychological pressure on her to continue dancing nude. Thisis one of the forms of control that he exercised over the complainant's movements.

Again, for example, this can be seen in two excerptsfrom her testimony: [translation] ... or else what he did, he told me, wow, tonight, you're going to dance, he said that to me in front of all his friends. He told me, tonight,you're going to dance. So I said, no, look, it... I don't want to go, and he said anyway, look, you're going to go just the same, that's what hedid. ... For him, because I said yes the first time, that meant I always said yes. That's what he thought. And like each time, that's what hetold me, well you wanted to, you’re the one who wants to, because I said yes the first time.

So what happened, it's when I arrived, like... in any case, I remember that he beat me, that he took my money and said to me, why aren'tyou able to play the whore, because I had made only $200, and he told me, he told me straight out, your minimum is $300, that's what hetold me.

And after, it increased, he'd say, I want $500, and that's how it went, but the problem is that I had to do things to get that money,because sometimes I couldn't get that money. [85] It was finally when Urizar said he wanted the complainant to dance in Toronto that she decided to file a complaint. [86] To understand Urizar's power over the complainant, we must consider the complainant's family background and theenvironment revealed by the evidence into which the nude dancers were plunged (the context).

During all those months, the complainantwavered between her passionate love for Urizar and her constant fear of him beating or even killing her if she refused to dance or givehim all her earnings, not to mention the shame she felt about the situation she was immersed in. [87] Many times, she tried to escape from Urizar's power. Urizar would then change his behaviour and seduce her again. She would[translation] "soften" and go back to dancing.

It is difficult to find explanations for the complainant's ambivalent behaviour other than thecomplete control that Urizar exercised over not only her movements, but also all of her personality traits. [88] The fact that this control, this direction, this influence over the complainant's movements was exercised in an area close to herparent's home does not in any way change Urizar's guilt. [89] For these reasons, I am of the opinion that the trial judge's finding on this count is well founded.

Urizar exercised control orinfluence over the complainant's movements for the purpose of abetting her to dance nude for his profit alone. The events occurred in acontext of physical, psychological, sexual and material abuse where it is reasonable to conclude that a refusal on the part of thecomplainant to engage in the activity concerned endangered or would have endangered her safety. Urizar was the only one who derived amaterial benefit from the activity. (iv) Extortion and threats [90] Extortion is defined as follows in section 346(1) Cr.

C.: 346(1) [Extorsion] Commet une extorsionquiconque, sans justification ou excuseraisonnable et avec l’intention d’obtenir quelquechose, par menaces, accusations ou violence,induit ou tente d’induire une personne, que cesoit ou non la personne menacée ou accusée, oucelle contre qui la violence est exercée, àaccomplir ou à faire accomplir quelque chose. 346(1) [Extortion] Every one commits extortionwho, without reasonable justification or excuseand with intent to obtain anything, by threats,accusations, menaces or violence induces orattempts to induce any person, whether or not heis the person threatened, accused or menaces orto whom violence is shown, to do anything orcause anything to be done. [91] Urizar argues here that the trial judge confused encouragement with extortion.

According to him, the complainant dancedwillingly. Urizar merely encouraged her. [92] This ground of appeal is unfounded. [93] In R. v. Davis,[19] the Supreme Court explains that extortion is a crime of intimidation: Extortion criminalizes intimidation and interference with freedom of choice. It punishes those who, through threats, accusations,menaces, or violence induce or attempt to induce their victims into doing anything or causing anything to be done. Threats, accusations,menaces and violence clearly intimidate: see R. v. McCraw, (SCC), [1991] 3 S.C.R. 72, at p. 81; R. v.

Clemente, (SCC), [1994] 2 S.C.R. 758, at pp. 761-62. When threats are coupled with demands, there is an inducement to accede to thedemands. This interferes with the victim’s freedom of choice, as the victim may be coerced into doing something he or she wouldotherwise have chosen not to do.[20] [94] While it is true that the complainant started dancing nude willingly, the evidence shows that Urizar subsequently used threatsand violence to compel the complainant to dance nude and to give him all her earnings.

There is ample basis in the evidence to findUrizar guilty on this count. [95] Furthermore, as the prosecution rightly suggests, insofar as the conviction is upheld on the count of trafficking in persons, thecount of extortion is duplicative here. A conditional stay for this count is therefore appropriate.

[ 96 ] This applies as well to the count of uttering threats. This count relates to the threats used to carry out the extortion and the trafficking in persons. [ 97 ] For these reasons, I would allow the appeal for the sole purpose of entering a conditional stay on the following counts: Threats to cause death or bodily harm – 264.1(1)( a )(2)(

a) Cr. C. Possession of a weapon for the purpose of committing an offence – 88(2)(

a) Cr. C. Extortion – 346(1)(1.1)() Cr. C. ANDRÉ ROCHON, J.A.