R. v. T.J.F., 2023 NSCA 28

Nova Scotia Court of Appeal Citation: R. v. T.J.F., 2023 NSCA 28 Date: 20230425 Docket: CAC 510963 Registry: Halifax Between: His Majesty the King Appellant v. T. J. F. Respondent Restriction on Publication: ss. 486.5 and 486.5 of the Criminal Code Judge: The Honourable Justice Peter M. S. BrysonAppeal Heard: November 9, 2022, in Halifax, Nova ScotiaCases Cited: R. v. C.E.G., 2023 NSCA 1; R. v. Gallone, 2019 ONCA 663; R. v. Gerrard, 2021 NSCA 59 (aff’d2022 SCC 13); R. v. S.S.S., 2020 BCCA 180; R. v. Downey, 2018 NSCA 33; R. v. Morin, (SCC), [1988] 2 S.C.R 345; R. v. B.(G.), (SCC), [1990] 2 S.C.R. 57; R. v.

Walker,2008 SCC 34; R. v. Kendall (2005), (ON CA), 75 O.R. (3d) 565, 200 OAC 18(Ont. C.A); R. v. R.E.M., 2008 SCC 51; R. v. Braich, 2002 SCC 27; R. v. R.P., 2012 SCC 22; R. v.Burke, (SCC), [1996] 1 S.C.R. 474; R. v. Dinardo, 2008 SCC 24; Dissent: R. v. (H.)J.M., 2011 SCC 45; R. v. Cowan, 2021 SCC 45; R. v. Gallone, 2019 ONCA 663; R.v. A.A., 2015 ONCA 5; R. v. Sinclair, 2020 ONCA 61; R v. Downey, 2018 NSCA 43; R. v. H-O., 2022ONSC 4900; R. v. Augustin and St.

Armand, 2022 ONSC 5901; Legislation Cited: ss. 279.01, 279.01(3), 279.02(1), 279.04, 676(1) of the Criminal Code;Subject: appeals – criminal law – trafficking and obtaining financial or material benefit from trafficking –credibility – Crown’s right of appealSummary: T.J.F. was acquitted of charges of human trafficking and obtaining a financial or material benefit fromhuman trafficking because the only evidence of exploitation and attempted exploitation came from thecomplainant whose credibility the trial judge did not accept.

The Crown appealed arguing the trialjudge erred by characterizing T.J.F.’s violent behaviour as past discreditable conduct but did notconsider it as material to the actus reus of trafficking. The Crown added that the trial judge failed toconsider all the relevant evidence and erred with respect to the legal effect of that evidence. T.J.F.conceded that the judge erroneously referred to past violent behaviour as discreditable conduct butsubmitted it was not material because it had no impact on the judge’s conclusion which was based onhis doubt that T.J.F. had exploited the complainant or benefited from it.

The Crown appealed thejudge’s dismissal of the charges.Issues:

(1) Did the trial judge’s erroneous characterization of T.J.F.’s violent conduct as “pastdiscreditable conduct” have any impact on the verdict?

(2) Did the trial judge fail to consider all the evidence?

(3) Did the trial judge misapprehend the legal effect of the finding of fact?Result: Appeal dismissed. The trial judge’s mischaracterization of T.J.F.’s violent conduct had no impact onthe acquittal because exploitation and attempted exploitation depended upon the complainant’stestimony which the judge did not accept. Accordingly, the Crown did not demonstrate a reasonabledegree of certainty that the verdict would not necessarily have been the same.

The judge did not fail toconsider all the evidence but drew conclusions from that evidence with which the Crown disagreed.The trial judge did not misapprehend the legal effect of any finding of fact. Van den Eynden J.A. (dissenting) The judge erred in law by misapprehending critical evidence andthere is a reasonable degree of certainty the verdict would not have been the same but for the judge’serror. The appeal should be allowed, the acquittals set aside, a new trial should be ordered. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet.

The full court

judgment consists of 112 paragraphs. Nova Scotia Court of Appeal Citation: R. v. T.J.F. , 2023 NSCA 28 Date: 20230425 Docket: CAC 510963 Registry: Halifax Between: His Majesty the King Appellant v. T. J. F. Respondent Restriction on Publication: ss. 486.4 and 486.5 of the Criminal Code Judges: Farrar, Bryson and Van den Eynden JJ.A. Appeal Heard: November 9, 2022, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Bryson J.A.; Farrar J.A. concurring; Van den Eynden J.A. dissenting Counsel: Jennifer MacLellan, K.C., for the appellant Michelle James, for the respondent Order restricting publication — sexual offences 486.4

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

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

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

b) on application made by the victim, the prosecutor or any such witness, make the order. […] Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4 , on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

Reasons for judgment: Introduction [ 1 ] The Crown has appealed the Honourable Justice Kevin Coady’s acquittal of T.F. on charges of human trafficking and obtaining a financial or material benefit from human trafficking, contrary to ss. 279.01 and 279.02, respectively, of the Criminal Code [1] ( R. v. T.J.F. , 2021 NSSC 290 ). [ 2 ] T.F. and the complainant, J.D., lived in a common law relationship for approximately eight years.

After losing their jobs in Halifax, the couple moved to Alberta where J.D. says she was compelled by T.F. to engage in sex work from which he primarily benefited. [ 3 ] The Crown called extensive evidence of violence, threats, and intimidation of J.D. by T.F. The judge had substantial concerns about the credibility of many of the witnesses, but he was satisfied that J.D. “found herself trapped in a violent, unhappy and loveless relationship” with T.F. The judge accepted that J.D. had been subjected to “… threats, intimidation and injury”.

The Crown claims the judge treated this evidence as past “discreditable conduct”. The Crown says the judge did not realize that the violence was an essential element of the offences charged.

As a result, the Crown submits he erred in law. [ 4 ] The Crown adds that the judge did not consider all the relevant evidence and erred respecting the legal effect of his factual findings. [ 5 ] The Crown summarizes the judge’s alleged errors of law in acquitting T.F.: • He assessed the evidence based on a wrong legal principle; • He failed to consider all the relevant evidence; • He erred with respect to the legal effect on factual findings made. [ 6 ] T.F. concedes the judge erroneously referred to T.F.’s violent behaviour as past discreditable conduct but says it does not matter because it was not material to the judge’s conclusion of reasonable doubt that T.F. exploited J.D. or benefited from it.

T.F. submits the Crown was required to prove that the intimidation, threats and violence controlled J.D. for the purpose of exploiting her. T.F. submits the Crown failed to do so. [ 7 ] T.F. maintains the judge considered all the evidence and did not err respecting the legal consequences of his factual findings. [ 8 ] The Crown is correct that the judge erred in law by describing T.F.’s threats, intimidation and violent behaviour as simply “past discreditable conduct”. Nevertheless, the judge’s error was not material to the acquittal.

His decision did not turn on whether T.F. had been violent – which the judge accepted – but on his doubt that T.F. exploited J.D. or benefited from any alleged exploitation of her. Nor did the judge fail to consider all the evidence or misstate the legal impact of his factual findings. Accordingly, for reasons developed below, the appeal should be dismissed. [ 9 ] After a

summary of the factual allegations, the charges and the Crown’s right of appeal will be reviewed, followed by analysis

of the issues raised by the Crown.

Summary of Allegations [ 10 ] T.F. and J.D. met in 2004 when they were both working at a popular bar in Halifax. J.D. was a single mother with a young daughter, J.R., then in grade school. T.F. moved in with J.D., and in May of 2006, they had a daughter. [ 11 ] In 2006, the couple moved to Alberta in hope of improved employment prospects for them both. Initially they lived in Fort Saskatchewan. Later they moved to Edmonton. [ 12 ] J.D. testified that T.F. did not work, while she worked in local bars. At first, she said that T.F. persuaded her to have sex with him while being recorded on a webcam.

In cross-examination, she acknowledged telling police in 2013 that she did it for “fun”. J.D. also testified that T.F. persuaded her to dance for men which led to sexual services for money. She said that T.F. advertised these services on Craigslist. He would accompany J.D. to a client location and would watch or listen to the sexual acts that were demanded by the client. J.D. said all proceeds were taken by T.F. She did this because she was afraid of T.F. who threatened her and was violent with her.

J.D. never told anyone about the sex business or the physical abuse. [ 13 ] J.D. says she was introduced to cocaine by T.F. She developed a habit of regular drug use including cocaine, ecstasy, and speed. Although J.D. said T.F. would give her money occasionally to pay bills, she said in direct-examination that she did not know what the money she earned was used for. Then in cross-examination, she admitted the cocaine alone was a $300 a day habit. [ 14 ] The family’s domestic circumstances were chaotic.

They were evicted from several homes owing to property damage done by T.F. and rent payments he failed to make. [ 15 ] On one occasion, J.D. said that she was assaulted by T.F. who damaged a finger on her hand which required a visit to the hospital. She lied to hospital authorities about the cause of the injury because she was afraid that she might lose the children. On a second occasion, T.F. struck her in the face, requiring a hospital visit and two stitches.

She told the doctor she had fallen on the ice. [ 16 ] In June of 2010, the family returned to Halifax apparently to escape threatened criminal charges in Alberta for property damage. T.F.’s violent behaviour continued in Halifax. J.D. said that she continued to do sex work in Halifax but that this stopped soon after she took a job at a strip bar. [ 17 ] The relationship ended in 2012 when T.F. was “removed from the home” by police. [ 18 ] In 2013, J.D. reported the abuse and alleged exploitation to the Halifax Regional Police. She gave police a statement, but decided not to pursue charges.

In 2018, J.D. had a change of heart apparently because T.F. disclosed something of her past in the context of a family law dispute with J.D. [ 19 ] J.D. gave a new statement to police in 2018. Charges were subsequently laid. [ 20 ] The judge summarized J.D.’s narrative as follows: [12] The testimony of JD paints a disturbing case of human exploitation on a grand scale. This narrative does not represent findings of fact.

The question remains whether the Crown has proven these charges beyond a reasonable doubt. [ 21 ] At trial, the Crown called J.D., as well as her brother, her mother, and her daughter as witnesses. The Crown also called two friends of J.D. and two police officers. T.F. did not testify. Because the judge was satisfied that credibility played a major role in the case, he summarized the evidence of each lay witness. While he had reservations about the credibility of a number of those witnesses, the judge found J.D.’s mother, J.C., credible, and J.D.’s daughter, J.R., “very credible”.

J.R. confirmed the aggressive and sometimes violent behaviour of T.F. [ 22 ] After his analysis of J.D.’s evidence, the judge concluded: [70] I have concerns about the credibility of the complainant JD. I suspect there was a prostitution business going on but I cannot be satisfied that Mr. F. was part of that enterprise or benefitted, as envisaged in s. 279.01(3) [ sic ]. There is much to suggest he probably was but not enough to establish proof beyond a reasonable doubt. Consequently, I am obliged to acquit Mr. F. of both counts. The Charges [ 23 ]

Section 279.01: 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 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. Consent

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

(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. [ 24 ]

Section 279.02(1): Material benefit — trafficking 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 (

a) an indictable offence and liable to imprisonment for a term of not more than 10 years; The Crown’s Right of Appeal [ 25 ] Courts of appeal only have jurisdiction to review an acquittal on questions of the law ( s. 676(1) of the Criminal Code ). The Crown has no right to argue an acquittal should be overturned because it is unreasonable or otherwise unsupported by the evidence. In the recent case of R. v. C.E.G. , 2023 NSCA 1 , this Court recapitulated when an appeal court may reverse an acquittal where the judge’s treatment of the evidence is legally challenged: [34] Cromwell J., in R. v.

J.M.H. , 2011 SCC 45 , identified four scenarios where an appeal court can reverse acquittals despite being ostensibly based on evidentiary assessments or factual determinations: 1. It is an error of law to make a finding of fact for which there is no evidence – however, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purpose of this rule. 2. The legal effect of findings of fact or of undisputed facts raises a question of law. 3. An assessment of evidence based on a wrong legal principle is an error of law. 4.

The trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law. [ 26 ] But C.E.G. reminds us: [35] However, an appellate court cannot translate strong opposition to a trial judge’s factual findings into legal errors ( R. v. George , 2017 SCC 38 , at para. 17 ). [36] In addition, even if legal error were established, in order to obtain appellate relief, the Crown must also satisfy the court with a reasonable degree of certainty the verdict would not necessarily have been the same (see: R. v. Sutton , 2000 SCC 50 ; R. v.

Graveline , 2006 SCC 16 ). I need not consider this additional hurdle as I am not satisfied the trial judge erred on a question of law alone. [Emphasis added.] Did the judge assess the evidence on a wrong legal principle? [ 27 ] The Crown begins its argument by citing the Ontario Court of Appeal in R. v. Gallone , 2019 ONCA 663 : [17] The Crown must establish beyond a reasonable doubt two elements to make out the offence of human trafficking. First, it must prove that the accused did anything that satisfies the conduct requirement set out in s. 279.01(1) in relation to a person.

Second, it must prove that the accused intended to do anything that satisfies the conduct requirement, and that the accused acted with the purpose of exploiting or facilitating the exploitation of that person: R. v. A.A. , [2015] O.J. No. 4016, 2015 ONCA 558 , 327 C.C.C. (3d) 377, at paras. 79 , 82. […] [ 28 ] The Crown says it called significant evidence of the abusive domestic relationship that existed between J.D. and T.F.

As earlier described, the Crown claims this was “erroneously treated” by the judge as evidence of bad character, providing only context or background and not going directly to the offences before the court. [ 29 ] The Crown cites the judge’s description of J.D.’s situation from the decision: [57] I am satisfied from all of the evidence that JD found herself trapped in a violent, unhappy, and loveless relationship with Mr. F. However, the charges before this Court do not directly address the threats, intimidation, and injury that I accept as proven facts.

The question before me is whether the Crown has proven these charges beyond a reasonable doubt. The past discreditable evidence certainly creates a backdrop in which such exploitation could thrive. However, I cannot just assume from that context evidence that the human trafficking allegations are proven as against Mr. F. It requires the acceptance of JD’s evidence as credible and reliable to tie Mr. F. to the prostitution enterprise . [Italics Crown’s emphasis; underlined emphasis added.]

[ 30 ] Respectfully, the Crown’s complaint that the judge failed to treat this evidence as “corroborative” of J.D.’s testimony, thus satisfying the actus reus element of the trafficking offence, is beside the point. The judge accepted the evidence of violence.

But that alone did not prove exploitation. [ 31 ] The underlined passage above shows that the judge’s focus and concern was never the violent conduct of T.F., which he accepted, but rather whether J.D. was exploited. [ 32 ] The Crown supports its claim of error regarding T.F.’s violence by quoting from the decision: [31] JR was a very credible witness in that she did not attempt to embellish her testimony. She answered questions directly and did not appear to be evasive. JR’s testimony firmly establishes that she was brought up in a violent and dysfunctional family. She rightly describes Mr.

F. as an abusive brute. However, her testimony does not directly support the charges before this Court. When asked about JD and Mr. F.’s night-time outings she replied, “I understood [T.] and Mother went out to work, that is what I thought.” I am satisfied she was referring to work in the bars. [Emphasis added.] [ 33 ] The Crown’s criticism focuses on the judge’s mischaracterization of the violence as simply discreditable conduct.

But the judge was certainly aware of the conduct requirement of the offence because he described it: [47] […] The conduct requirement may be established in several different ways including exercising control, direction or influence over the movements of another person. Instead of specific actions; it characterizes the nature of the conduct in terms of the relationship between the accused and the victim in relation to the victim’s mobility. [ 34 ] The judge also said: [46] There are two main elements of s. 279.01 . One is the actus reus of committing one of the prohibited acts as set forth in ss (1).

Second is the mens rea of either (

a) having the purpose of exploiting another person or (

b) having the purpose of facilitating their exploitation by another person. [ 35 ] The judge’s mistaken characterization of the domestic violence as “discreditable conduct” did not taint his legal analysis of the elements of the offence which the Crown had to prove, as the following demonstrates: [49] The mens rea of s. 279.01 is found in the words “for the purpose of exploiting or facilitating their exploitation”.

The Crown is required to prove the following: • The accused must be found to have committed one of the acts for the purpose of exploiting or facilitating the exploitation of another person. • The word “purpose” has no fixed meaning and must be interpreted in statutory context. • “For the purpose of” requires a subjective state of mind directed to the prohibited consequence. In R. v. A.A. , 2015 ONCA 558 , the Court commented on the fault element at paragraph 82: [82] The fault element of the offence consists of two components.

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

Where human trafficking is charged, the Crown must prove, along with conduct, that the accused acted for the purpose of exploiting the complainant. [Bold emphasis added.] [ 36 ] In this case, where J.D. and T.F. were living together, the Crown could have relied on the presumption in s. 279.01(3) if the Crown had proven exploitation. [ 37 ] The Crown argued J.D. was exploited by T.F. because he pressured her to provide sexual services for money.

Accordingly, the judge scrutinized J.D.’s evidence by which she tied T.F. to the sexual services work. [ 38 ] The judge prefaced his credibility analysis by observing: [51] The testimony of JD, if accepted at face value, without challenge, would be sufficient to convict Mr. F. However, that is not the case, as JD’s credibility requires scrutiny. [ 39 ] The judge was correct that J.D. was the only witness who testified to the exploitation of J.D.

None of the other witnesses said anything relevant to T.F.’s conduct in any way related to: [1] […] the purpose of exploiting […] facilitating […] exploitation, contrary to

Section 279.01(1) of the Criminal Code . [ 40 ] The judge reviewed at length the law relevant to credibility assessment. He then cited a series of what he found to be inconsistencies in J.D.’s own evidence which impaired her credibility. He summarized his concerns this way:

[58] I find that JD was often prone to exaggeration and hyperbole. She added phrases to her answers that were directed at Mr. F.instead of the Court. I was left with the impression that JD viewed Mr. F. as a captive audience. While such behaviour is totallyunderstandable, given the couples’ violent relationship, it seriously detracted from her evidence. I find that JD recognized when hertestimony was lacking on certain points. In those situations answers were given that were at variance with accepted testimony. In otherwords, I had concerns that she was filling in the blanks to comply with her narrative.

My view of JD’s testimony after direct wassignificantly altered by her cross-examination. [41] Unless there was no evidence to support them, the judge’s credibility findings are unassailable by the Crown on appeal.Nevertheless, it bears repeating that in cross-examination J.D. admitted to saying numerous things in court for the first time that she hadnot mentioned in her 2013 and 2018 statements to police nor to the Crown in preparation for trial.

Those concessions included suchthings as having passwords to the posted ads for sexual services, but telling the police in 2013 that she did not have passwords; saying forthe first time that it was not she but T.F. who was responding to text messages using her phone; claiming that T.F. locked the children intheir room when customers visited her at home; alleging a violent assault involving “two native guys”; being kicked in the back by T.F.;that T.F. tried to induce her to engage in sexual activity with an unconscious woman. All of these were novel revelations at trial.

Theywere only some of the concerns that prompted the judge’s reservations about J.D.’s testimony described in ¶40 above. [42] Recently, in R. v. Gerrard, 2021 NSCA 59 (aff’d 2022 SCC 13), this Court quoted from the British Columbia Court of Appealin R. v. S.S.S., 2020 BCCA 180, at ¶24-26, emphasizing the importance of appellate deference to trial judges on matters of credibility: [24] It is important to emphasize that while an appellate court is tasked with scrutinizing the reasons given by the trial judge,considerable deference is owed to the trial judge on issues of fact-finding and credibility assessment.

In R. v. Howe (2005), (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.) Doherty J.A. outlined the rationale for the limited role of an appellate court: [46] Careful scrutiny of the trial judge’s reasoning process is not … to be equated with re-trying the case. An appellate court mustalways bear in mind the significant advantage enjoyed by the trial judge when it comes to assessing credibility. … A lifeless transcriptof the testimony cannot possibly replicate the unfolding of the narrative at trial.

Nor can oral argument and a selective review of the trialrecord possibly put an appellate court in as good a position as the trial judge when it comes to credibility determinations: see R. v.Francois (1994), (SCC), 91 C.C.C. (3d) 289 at 296 (S.C.C.). [25] In R. v. Gagnon, 2006 SCC 17 at para. 20, the Court recognized that the bases for credibility assessments are not always easy toexpress, and re-emphasized the need for appellate courts to give deference to the findings of trial judges: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is whythis Court decided, most recently in [H.L. v. Canada (Attorney General), 2005 SCC 25 , [2005] 1 S.C.R. 401], that in theabsence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [26] The need for deference, however, does not mean that appellate review is abandoned altogether.

Where a judge’s reasonsdemonstrate an error of principle in the assessment of credibility, or show that credibility has been assessed arbitrarily or using irrelevantcriteria, appellate intervention may be required. [Emphasis added.] [43] This Court went on to comment: [45] While this remains an accurate statement of the law, since then, the Supreme Court of Canada released several brief oraldecisions (R. v. Langan, 2020 SCC 33; R. v. Kishayinew, 2020 SCC 34; R. v. Slatter, 2020 SCC 36; R. v. Delmas, 2020 SCC 39; R. v.Mehari, 2020 SCC 40, R. v. W.M., 2020 SCC 42 and R. v.

Cortes Rivera, 2020 SCC 44) reminding appeal courts of the considerabledeference owed to findings of credibility made by trial judges. [46] These Supreme Court of Canada decisions approved certain principles of law that were applied in the appeal court decisions thatgave rise to them. A review of these underlying decisions reminds appeal courts that credibility findings are findings of fact not to beoverturned in the absence of palpable and overriding error or an error in principle.

It also reminds us to read the trial judge’s reasons as awhole and in the context of the entire record. [47] Some of those cases dealt with sufficiency of a trial judge’s reasons, a concept related to deference. They remind us it is the trialjudge who has the opportunity to hear and observe all of the witnesses and this fact “anchors the principle that when reviewing reasonsfor sufficiency, an appellate court should start from a stance of deference towards a trial judge’s perception of the facts”; Slatter,2019 ONCA 807, para. 118.

They also remind us a trial judge’s reasons with respect to credibility do not need to “describe everyconsideration”, Slatter (2019), para. 118; appellate review should not involve a “word-by-word analysis”, Delmas, 2020 ABCA 152,para. 30; a trial judge does not need to “reconcile every frailty”, Slatter (2019), para. 118; or comment on every inconsistency,Kishayinew, 2019 SKCA 127, para. 76; and that it is not a requirement for a trial judge to explicitly state at the end of their credibilityfinding that the accused’s evidence left them without a reasonable doubt. […] [Emphasis added.] [44] The Crown’s criticism of the judge’s mischaracterization of the domestic violence does not address the credibility findings onwhich the case turned. [45] The judge’s erroneous characterization of T.F.’s violent conduct did not lead to any analytical error of the evidence respectingthe charges before the court.

Alternatively, the Crown has not demonstrated with “… a reasonable degree of certainty the verdict wouldnot necessarily have been the same”, because the judge’s mischaracterization of T.F.’s violence did not affect his credibility analysis onwhich the case ultimately depended (C.E.G., at ¶36, cited in ¶25 above).

Did the judge fail to consider all the evidence? [46] The Crown complains that the judge’s limitation of the evidence of the lay witnesses to “context and background” led him toignore its significance as corroboration of the evidence of J.D. But respectfully, the evidence of the lay witnesses could only becorroborative of J.D.’s description of the domestic violence. It said nothing about exploitation.

In fact, the judge did accept the evidenceof the lay witnesses concerning the domestic violence and to that extent treated it as corroborative of J.D.’s own complaint. [47] Next, the Crown says the judge “piecemealed” the evidence by treating J.D.’s credibility as determinative of the entire caseand “subjected her evidence to the ultimate standard of proof beyond reasonable doubt, without considering the multiple ways in which itwas corroborated by other evidence …” (citing R. v.

Downey, 2018 NSCA 33). [48] The error of “piecemealing” occurs when individual pieces of evidence are subjected to a beyond reasonable doubt standard ofproof and the evidence as a whole is not looked at for that purpose (R. v. Morin, (SCC), [1988] 2 S.C.R 345; R. v. B.(G.), (SCC), [1990] 2 S.C.R. 57). But respectfully, the judge did no such thing in this case. The evidence of all the otherwitnesses was reviewed, but did not establish actual or intended exploitation or receiving benefits from a sexual services business. Tomake that connection, the judge would have had to rely on J.D.’s testimony.

Accordingly, proving the case beyond reasonable doubtrequired acceptance of her evidence of exploitation by T.F. in the sexual services enterprise, which ultimately the judge did not do. [49] The Crown also says that the judge failed to recognize the significance of “particularly inculpatory evidence”. Exhibit 3 at trialconsisted of two ads for J.D.’s sexual services. In cross-examination, J.D. admitted that these ads were posted under her user account.Her telephone numbers in the exhibits appear as the “authorized user”.

This part of the exhibit was not visible to prospective customers.But in the body of both advertisements, customers were invited to contact her in this way, “… if you would like to try and tame this Kat,text me or call me (780) 616-XXXX or drop me an email if you like”. A similar invitation appears in the second ad in evidence. Bothnumbers in the bodies of the advertisements are described in another exhibit from the telephone service provider as in the name of T.F.who is also the “user”.

The judge was aware of what numbers belonged to whom because he described them: [15] Exhibit No. 3 is a Craigslist Affidavit dated April 25, 2018. It includes an ad for sexual services dated March 31, 2009 andincludes the contact number (780) 965-YYYY. A second ad, dated May 29, 2009, includes the contact number (780) 616-XXXX. [16] Exhibit No. 4 is an Affidavit from Rogers Communications dated August 6, 2021. It confirmed that the phone number (780)965-YYYY belonged to T. F. in 2009. It confirmed that the phone number (780) 616-XXXX belonged to T. F. in 2009/2010.

Theauthorized user phone above the second ad in Exhibit #3 is (780) 904-ZZZZ. That number is JD’s mother’s phone number and the username is JD. JD acknowledges that phone was hers when they lived in Alberta. [Emphasis added.] [50] The Crown argues the judge needed to address that “both ads gave [T.F.] as the contact for perspective [sic] clients”. This is anoverstatement. The ads do not give T.F. as the contact but rather telephone numbers registered in his name.

The same service providerexhibit indicates that a phone in the possession and use of J.D. was actually in the name of her mother although it did indicate herdaughter as a user. J.D. clearly had access to T.F.’s phones because by her own admission she did “on occasion” place ads and respond tocalls which would have required access to the phones with the number appearing in the ads. She admitted to having a Craigslist accountor accounts but said that T.F. did too.

But no ads with T.F.’s number as “authorized user” were exhibited in evidence. [51] Although J.D. testified that T.F. typically took “calls” on her behalf, the only other witness who spoke about calls describedJ.D. responding to one. J.D.’s friend K.L. testified to being in J.D.’s presence when she received a call. K.L. heard J.D. use the name“Miss Kitty”. She later found J.D.’s cell number on an ad for sexual services. [52] In addition to summarizing the relevant exhibits, the judge observed: [68] On cross JD acknowledged posting the ads in Edmonton. She stated that Mr.

F. would get tired of sitting at the computer, and hewould make her stay up “all night” designing the contents of the ads. She admitted providing the names, numbers, and email addressesused in the Craigslist ads. JD also acknowledged a Craigslist account in her name.

She agreed that the phone number in the second adwas for the phone she got from her mother for her personal use. [53] The Crown points out that J.D.’s number on Exhibit 3 was the “user” number and would not have been visible in the ad itself.But the judge would have been aware from the exhibits he quoted and from the evidence of J.D. and the arguments of counsel of theplacing of the ads and the phone numbers in the body of the ads. [54] The trial judge was aware of the Craigslist ads and telephone numbers in them because he recited the evidence describing thosenumbers.

He was not satisfied that this evidence was able to resuscitate J.D.’s credibility. At the end of the day he was left with areasonable doubt. In R. v. Walker, 2008 SCC 34, the Crown complained that the trial judge failed to explain whether his reasonabledoubt on the mens rea for murder was due to intoxication, accident, or a combination of the two. The Court quoted with approval fromthe minority decision R. v. Kendall (2005), (ON CA), 75 O.R. (3d) 565, 200 OAC 18 (Ont.

C.A), where JusticeSharpe said: [98] […] A reasonable doubt need not rest upon the same sort of foundation of factual findings that is required to support aconviction. A reasonable doubt arises where an inadequate foundation has been laid. [55] Although an “adequacy of reasons” case, the Supreme Court in R. v. R.E.M., 2008 SCC 51, described the presumptions fromwhich the trial judge benefits: [45] Just as it is reasonable to infer that the trial judge seized the import of the evidence, it is generally reasonable to infer that thetrial judge understands the basic principles of criminal law at issue in the trial.

Indeed, for this reason it has repeatedly been held that“[t]rial judges are presumed to know the law with which they work day in and day out”: R. v. Burns, (SCC), [1994] 1

S.C.R. 656, at p. 664, where the Court rejected the notion of a positive duty on trial judges to demonstrate that they have appreciatedevery aspect of the relevant evidence. The trial judge is not required to recite pages of “boilerplate” or review well-settled authorities indetail, and failure to do so is not an error of law. As Binnie J. pointed out in Sheppard, at para. 55, point 7: Regard will be had to the time constraints and general press of business in the criminal courts. The trial judge is not held to someabstract standard of perfection.

It is neither expected nor required that the trial judge’s reasons provide the equivalent of a juryinstruction. [Emphasis added.] [56] There is no need for a judge to recite all of the evidence or answer each and every argument of counsel (R. v. Braich, 2002 SCC27, at ¶38). An accused who appeals a conviction of reaching an unreasonable verdict (a ground not available to the Crown here) doesnot permit an appellate court to interfere with findings of credibility unless those findings “cannot be supported on any reasonable viewof the evidence” (R. v. R.P., 2012 SCC 22, at ¶10 citing R. v.

Burke, (SCC), [1996] 1 S.C.R. 474, at ¶7). Becausecredibility findings are for the trial judge, attracting significant deference, appellant intervention is rare (R. v. Dinardo, 2008 SCC 24, at¶26). [57] In the end, the significance of the presence of T.F.’s phone numbers in the ads posted by J.D. could be relevant to hercredibility as potentially corroborative concerning T.F.’s role in exploiting her to provide sexual services for money. But credibilityfindings, the weighing of evidence, and the sufficiency of evidence as well as the existence of reasonable doubt are questions of fact forthe trial judge.

The judge’s conclusion that he had reasonable doubt about T.F.’s involvement in any sexual services enterprise waslargely dependent upon his doubt about J.D.’s credibility, unassailable by the Crown on appeal. Did the judge misapprehend the legal effect of a finding of fact? [58] The Crown claims the judge found the conduct element of human trafficking had been established but did not realize it.

TheCrown says he should have then proceeded to consider the purpose behind the conduct—was it for the purpose of exploiting J.D.? [59] Respectfully, the Crown here ignores the judge’s refusal to find T.F. was connected to the sexual services enterprise.

The judgecould not find J.D. was exploited because he did not accept J.D.’s evidence. [60] Alternatively, the Crown argues that s. 279.01(1) is assisted by the presumption of s. 279.01(3) because T.F. and J.D. livedtogether: Presumption 279.01(3) For the purposes of subsections (1) and 279.011(1), evidence that a person who is not exploited lives with or is habitually inthe company of a person who is exploited is, in the absence of evidence to the contrary, proof that the person exercises control, directionor influence over the movements of that person for the purpose of exploiting them or facilitating their exploitation. [61] The presumption in s. 279.01(3) has no application unless the Crown first establishes that the conduct described in s. 279.01(1)is for the purpose of exploiting or facilitating exploitation.

Section 279.01(3) itself does not establish exploitation. [62] Having failed to prove trafficking, it follows that the Crown could not prove T.F. benefitted from trafficking as set out in s.279.01(2) (incorrectly referred to as s. 279.01(3) by the judge). Conclusion [63] The judge’s mischaracterization of the domestic violence did not taint his legal analysis of trafficking. Nor did he fail toconsider all the evidence or fail to appreciate the legal effect of his factual findings. [64] I would dismiss the appeal. Bryson J.A. Concurred in: Farrar J.A.

Dissenting Reasons [65] Writing for the majority, my colleague Justice Bryson determined the judge’s mischaracterization of the violent acts therespondent (T.F.) perpetrated against the complainant (J.D.) did not taint the judge’s legal analysis of human trafficking. Nor did thejudge fail to consider all the evidence or fail to appreciate the legal effect of his factual findings. As a result, the majority would dismissthe appeal. [66] With respect, I do not concur with these determinations. In my view, the judge made material errors that require appellateintervention.

I would allow the appeal, set aside the acquittals, and order a new trial. The following explains why I reach a differentconclusion than my colleagues respecting the disposition of this appeal.

[67] As will become apparent in my reasons, our principle point of divergence is whether the judge’s mischaracterization of keyevidence (the violent acts), which was an error of law, undermined his credibility assessment upon which the acquittals hinged. As mycolleague’s reasons explain, he found it did not. I found it did. Appeals from acquittal – what must the Crown prove? [68] We know the Crown has no right to argue that an acquittal should be overturned because it is unreasonable or otherwiseunsupported by the evidence.

Our review of an acquittal is limited to questions of law which attract a correctness standard of review. [69] We also know there are scenarios where an appeal court can reverse an acquittal even though the acquittal is ostensibly basedon evidentiary assessments or factual determinations. In these circumstances, the trial judge’s shortcomings in assessing the evidenceconstitute an error of law thereby giving rise to a Crown appeal of an acquittal. Of the four such scenarios discussed in R. v.

H.(J.M.),2011 SCC 45, these three are relevant to this appeal: • An assessment of evidence based on a wrong legal principle is an error of law. • The legal effect of findings of fact or of undisputed facts raises a question of law. • A trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law. [70] However, establishing an error of law does not equate to appellate intervention. The Crown must also establish, to a reasonabledegree of certainty, the error of law might have had a material bearing on the acquittal.

The Supreme Court of Canada explained in R. v.Cowan, 2021 SCC 45: [46] Acquittals are not overturned lightly (R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595, at para. 2). To have an acquittal set asidedue to a legal error, the Crown bears the burden of satisfying an appellate court to a reasonable degree of certainty that the impugnederror of law might have had a material bearing on the acquittal (Graveline, at para. 14). This does not mean that the Crown is required topersuade the court that the verdict would necessarily have been different but for the error (ibid.).

Instead, the Crown must show that theverdict may well have been affected by it (R. v. Morin, (SCC), [1988] 2 S.C.R. 345, at p. 374). The Crown’s submissions on appeal [71] The Crown contends the judge’s decision to acquit the respondent of human trafficking contrary to s. 279.01 of the CriminalCode, and of obtaining a financial or material benefit from trafficking contrary to s. 279.02 is flawed because the judge misapprehendedthe evidence. Further, his misapprehension was present in three forms—each of which equate to an error of law.

Specifically, the Crownsays the judge: • assessed the evidence based on a wrong legal principle, • failed to consider all relevant evidence, and • erred with respect to the legal effect of factual findings he made. [72] To elaborate, the Crown called extensive evidence of violence, threats, intimidation, and injury the respondent inflicted on thecomplainant (his then spouse) during the offence timeframe specified in the Indictment. I collectively refer to this evidence as “violentacts”. The Crown proffered this evidence: 2.

To prove the actus reus of the offence of human trafficking, the Crown called extensive evidence of violence, threats, andintimidation [the complainant] suffered at the hands of [the respondent]. … The evidence was … conduct captured by the Indictmentdirectly relevant to the elements of the offences charged. […] 85. … It was also relevant to the fault [mens rea] element of the offence and the necessary objective assessment of whether theconduct by the accused would reasonably cause the Complainant to fear for her safety. [73] The judge accepted as proven these violent acts occurred.

However, in his decision the judge expressly stated, multiple times,that these violent acts did not address the charges before the court or go to the elements of the offence. Rather, he viewed the violent actsthrough the lens of past discreditable conduct—a legal principle not put to him either by the Crown or defence. [74] The Crown says viewing the violent acts through the lens of past discreditable conduct was wrong and caused the judge todowngrade the evidence of violent acts to background and context. The Crown summarizes this and its other assertions of amisapprehension of evidence, as follows: 3.

The trial Judge’s assessment of this evidence using the wrong legal principle of how a Court must approach past discreditableconduct also caused him to dismiss as peripheral much of the evidence of numerous Crown witnesses called both to give direct evidenceof the conduct [the respondent] engaged in with [the complainant] and to corroborate her evidence. As a result, the trial Judge madedeterminations about her credibility and whether the Crown had proven all elements of the offence without considering all the relevantevidence.

The trial Judge also ignored or misunderstood the relevance of Crown exhibits which showed [the respondent’s] phonenumbers as the contact for prospective clients wishing to purchase [the complainant’s] sexual services, thus tying him explicitly to whatthe trial Judge referred to as “the prostitution business”: the exploitation of [the complainant]. 4. The trial Judge also misapprehended that his factual finding that [the complainant] had been abused, threatened and intimidated

by [the respondent] constituted proof of the first element of the offence of human trafficking. Unaware of this, the trial Judge prematurely stopped his legal analysis, without considering the remainder of the elements of the offence and acquitted the accused. 5. In the context of the case, these legal errors had a material bearing on the acquittals. [ 75 ] Before explaining why the Crown’s assertions of error are convincing, I will set out the charges and their governing legal framework. The charges and their governing legal framework [ 76 ] The Respondent was charged with human trafficking under s. 279.01(1) of the Criminal Code . For convenience, the

section provides: 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 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. Consent

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

(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. [ 77 ] As explained in R. v. Gallone , 2019 ONCA 663 , s. 279.01(1) has two main elements: (1) actus reus —committing one [2] of the prohibited acts; and (2) mens rea —either (

a) having the purpose of exploiting another person or (

b) having the purpose of facilitating their exploitation by another person: [17] The Crown must establish beyond a reasonable doubt two elements to make out the offence of human trafficking. First, it must prove that the accused did anything that satisfies the conduct requirement set out in s. 279.01(1) in relation to a person. Second, it must prove that the accused intended to do anything that satisfies the conduct requirement, and that the accused acted with the purpose of exploiting or facilitating the exploitation of that person: R. v. A.A. , 2015 ONCA 558 , . . . [ 78 ]

Section 279.01(3) provides a rebuttable evidentiary presumption to aid the Crown in the proof of the mens rea element. The presumption is engaged where there is evidence that a non-exploited person (here the respondent) is living with a person who is exploited. Its operation was explained in Tremeear’s Criminal Annotations [3] : The presumption is engaged by evidence that a person who is not exploited lives with or is habitually in the company of another who is exploited. Once the presumption is engaged, absent evidence to the contrary, is proof that the non-exploited (

D) exercises control, direction or influence over the movements of the exploited (

V) for the purpose of exploiting them or facilitating their exploitation. [ 79 ] In its closing submissions to the judge, the Crown contended it was entitled to rely on the presumption and explained why the presumption should apply in the circumstances of this case. For now, I simply observe that apart from a brief conclusory sentence in the last paragraph of the judge’s decision, he did not otherwise engage in the Crown’s arguments on the applicability of the presumption. [ 80 ] The respondent was also charged with materially benefitting from human trafficking contrary to s. 279.02: Material benefit — trafficking 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 (

a) an indictable offence and liable to imprisonment for a term of not more than 10 years; … [ 81 ] Relevant to the above sections is s. 279.04 of the Criminal Code . This

section defines exploitation and sets out what a judge might consider when determining whether an accused unlawfully exploits another person: Exploitation 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. Factors

(2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused (

a) used or threatened to use force or another form of coercion; (

b) used deception; or (

c) abused a position of trust, power or authority. [ 82 ] The application of this

section was discussed in R. v. A.A ., 2015 ONCA 558 : [70]

Section 279.04 instructs us that one person exploits another if they cause that other person to provide labour by doing something that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide the labour.

On a straight-up reading of this definition of exploitation, three conclusions emerge: i. the expectation of the specific belief engendered by the accused’s conduct must be reasonable, thus introducing an objective element; ii. the determination of the expectation is to be made on the basis of all the circumstances; and iii. the person’s safety need not actually be threatened.

In essence, for there to be exploitation, an accused’s conduct must give rise to a reasonable expectation of a particular state of mind in the victim. [ 83 ] As is evident in s. 279.04(2), the list of factors a judge may consider is non-exhaustive. A more comprehensive list of circumstances which may be relevant when assessing whether conduct could reasonably be expected to cause the complainant to fear for their safety was set out in R. v.

Sinclair , 2020 ONCA 61 : [15] Circumstances that might be relevant when assessing whether conduct could reasonably be expected to cause a complainant to fear for their safety might include: • the presence or absence of violence or threats • coercion, including physical, emotional or psychological deception • abuse of trust, power, or authority • vulnerability due to age or personal circumstances, such as social or economic disadvantage and victimization from other sources • isolation of the complainant • the nature of the relationship between the accused and the complainant • directive behaviour • influence exercised over the nature and location services provided • control over advertising of services • limitations on the complainant’s movement • control of finances • financial benefit to the accused, and • use of social media to assert control or monitor communications with others. … [ 84 ] During closing submissions, the Crown emphasized to the judge the relevance of s. 279.04 .

The Crown pointed to ample evidence of the respondent’s repetitive and brutal use of force against the complainant during the Indictment period, evidence that was instructive in proving elements of the human trafficking offence.

In addition to the respondent’s violent conduct towards the complainant, the Crown also referred to evidence of other circumstances identified in Sinclair which caused the complainant to reasonably fear for her safety [4] . [ 85 ] The judge also had the benefit of a detailed and helpful pre-trial Crown submission [5] setting out all the relevant Criminal Code provisions and caselaw as to their proper

interpretation and application, including the relevance of s. 279.04. The defence did not make any pre-trial submissions nor were the Crown’s submissions challenged. [ 86 ] The judge made no reference to s. 279.04 in his decision. I expect the judge did not do so because, as I address later, he

(incorrectly) found that the violent acts did not relate to the offence elements. Had the judge engaged with s. 279.04 in his analysis, the relevance of the violent acts to the elements of the offence of human trafficking would have been apparent. [ 87 ] Having summarized the charges and legal framework, I turn to the Crown’s issues with the misapprehension of evidence. Did the judge misapprehend evidence?

If so, is there a reasonable degree of certainty this error of law might have had a material bearing on the acquittal ? [ 88 ] The judge clearly misapprehended evidence, most significantly the evidence of the violent acts committed by the respondent against the complainant.

This is an error of law and there is a reasonable degree of certainty this error might have had a material bearing on the acquittal. [ 89 ] To recap, the Crown says the judge misapprehended the evidence in three ways: • assessed the evidence based on a wrong legal principle, • failed to consider all relevant evidence , and • erred with respect to the legal effect of factual findings he made . Although there is some overlap in the discrete errors asserted by the Crown, I will address each in turn.

Assessed the evidence based on a wrong legal principle [ 90 ] There is no doubt the judge assessed the evidence of the violent acts based on a wrong legal principle. Even the respondent acknowledges the judge’s error: 17. … Further, it is acknowledged by the Respondent that the evidence of assaultive and/or threatening behaviour on the part of [the respondent] was admissible in the Crown's attempt to prove exploitation.

It was not other discreditable conduct, as referred to by the trial Judge. [ 91 ] As noted, the judge had the benefit of the pre-trial Crown submissions detailing the relevant Criminal Code provisions and helpful jurisprudence as to their

interpretation and application. The judge also had the benefit of thorough oral submissions given by the Crown which related the evidence the judge heard to the governing legal principles. The Crown’s submissions clearly demonstrated that the violent acts were directly relevant to the elements of the offences the respondent faced. [ 92 ] Neither the Crown nor defence made any reference to past discreditable conduct and the related legal principles that govern consideration of such evidence.

Their approach was correct because past discreditable conduct had no application to this case. [ 93 ] The judge reserved his decision after hearing closing oral submissions. The concept of discreditable conduct surfaced in his decision for the first time and prominently so. In fact, before (1) referencing the elements the Crown had to prove, and (2) conducting his credibility assessment of the complainant, the judge devoted a

section of his decision to the issue of past discreditable conduct and the case law that governed its admissibility and use. [ 94 ] It is overwhelmingly obvious the judge misapprehended the nature and relevance of the violent acts the respondent inflicted on the complainant. His lack of understanding is apparent throughout his reasons. The following illustrates: [27] JC presented as a very forthright witness. While some of her testimony inferred a violent home, it did not address the charges before this Court. … [31] JR was a very credible witness in that she did not attempt to embellish her testimony.

She answered questions directly and did not appear to be evasive. JR’s testimony firmly establishes that she was brought up in a violent and dysfunctional family. She rightly describes Mr. F. as an abusive brute. However, her testimony does not directly support the charges before this Court. …. … [41] Mr. F. Most of KL’s evidence focused on the relationship between JD and Mr. F. and offered little concerning the charges before this Court. [42] Much of the testimony of the above four witnesses related to events that, for the most part, did not directly address the charges before this Court.

That testimony related to Mr. F.’s bad character which, usually, is presumptively inadmissible. It can trigger propensity reasoning and amount to oath-helping. Such evidence must be considered through the probative/prejudicial effect lens. … [ 95 ] Further, in paragraph 45 of his decision, after making express reference to the charges against the respondent, the judge said: [45] …

The Offences Charged: 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…

(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 (

a) an indictable offence Given that the four secondary prior witnesses could not provide direct evidence of the elements of these offences , it fell to JD to provide that testimony. Consequently, her credibility comes into play. [bolding added] [ 96 ] There is no dispute the judge was wrong to say the witnesses could not provide direct evidence of the elements of these offences. Further, the judge’s reasons make clear he tied his misapprehension of the evidence to the credibility of the complainant.

This compounded his error of law. [ 97 ] As noted, the Crown argues viewing the violent acts through the lens of past discreditable conduct caused the judge to downgrade the evidence to background and context. I agree. The judge’s reasons make clear that is what he did: [57] I am satisfied from all of the evidence that JD found herself trapped in a violent, unhappy, and loveless relationship with Mr. F. However, the charges before this Court do not directly address the threats, intimidation, and injury that I accept as proven facts.

The question before me is whether the Crown has proven these charges beyond a reasonable doubt. The past discreditable evidence certainly creates a backdrop in which such exploitation could thrive. However, I cannot just assume from that context evidence that the human trafficking allegations are proven as against Mr. F. It requires the acceptance of JD’s evidence as credible and reliable to tie Mr. F. to the prostitution enterprise. [bolding added] [ 98 ] The violent acts were not “context evidence” adduced to show the respondent is the type of person to commit the offences of which he stood charged.

This evidence was directly relevant and probative to the offence elements of human trafficking—something the judge ought to have known but failed to recognize. [ 99 ] The judge’s assessment of this evidence under the incorrect legal principle of past discreditable conduct overshadowed his reference to correct legal principles elsewhere in his decision. Further, the judge’s incorrect assessment of this critical evidence seriously undermined his credibility assessment of the complainant, which he used as the rationale for acquittal. [ 10 0] This error in principle is sufficient to warrant appellate intervention.

That is so because the error satisfies the Crown’s burden of demonstrating, to a reasonable degree of certainty, the error might have had a material bearing on acquittal. [ 10 1] That said, I will address the remaining misapprehension of evidence issues raised by the Crown. Failed to consider all relevant evidence [ 10 2] In addition to the judge’s failure to appreciate and properly consider the legal significance of the violent acts as they relate to the offence elements, the Crown raises these concerns: 97.

The trial Judge’s limitation of the evidence of the aforementioned witnesses to context and background also led him to largely ignore its significance as corroboration of the evidence of [the complainant]. As in Downey [6] , the trial Judge erred by ignoring or failing to recognize the obvious relevance and significance of such evidence in both strengthening the reliability of [the complainant’s] testimony and connecting [the respondent] to the prostitution enterprise. 98.

The trial Judge also ignored or failed to recognize the significance of particularly inculpatory evidence: [the respondent’s] cell phone numbers appeared in both ads for [the complainant’s] sexual services (Exhibit 3) as the contact number for clients to use. In listing what he considered to be weaknesses in [the complainant’s] testimony, the trial Judge highlights that [the complainant’s] number appears in Exhibit 3.

This was the user number on the account and its presence neither undermined [the complainant’s] testimony, nor removed the probative force of [the respondent’s] numbers as the contact for clients wishing to purchase sexual services. [ 10 3] It is important to observe, as my colleague Justice Bryson has, that appellate courts owe deference to trial judges on matters of credibility. Equally important, a judge need not recite all the evidence and every argument advanced.

That recognized, these principles do not afford blanket protections. [ 10 4] On this record, the Crown’s observations of weakness in the judge’s reasoning are fair and logical. Had the judge not relegated the evidence of violent acts to context and background he would have been able to see that such evidence had the potential to strengthen the credibility and reliability of the complainant’s evidence.

[ 10 5] Further, the presence of the respondent’s cell phone number in the service ads is relevant to the offence elements. The Crown explained to the judge during oral submissions that the appearance of the respondent’s cell phone number as the contact number for clients in the ads (1) linked the respondent to the sex trade business and corroborated the complainant’s evidence, and (2) provided evidence to support the respondent’s exercise of control over the complainant.

The Crown’s contention is sensible; however, the judge failed to grapple with the effect of such inculpatory evidence in his decision. [ 10 6] Where credibility plays a key role, as in this case, it was imperative for the judge to base his credibility assessment on an accurate depiction of all the relevant evidence. That did not occur in this case. [ 10 7] Considering the significance of the misunderstood corroborative evidence and the judge’s failure to deal with important inculpatory evidence, these missteps might have had a material bearing on the acquittals.

Erred with respect to the legal effect of factual findings [ 10 8] The Crown’s final category of error pertains to the legal effect that should have flowed from the judge’s factual determinations. The Crown contends: 104. Once the trial Judge found as a fact that [the respondent] threatened, intimidated and injured [the complainant], the conduct element of the actus reus of human trafficking was established. The trial Judge did not realize this. He thought he had simply been provided context and background about their relationship.

The Judge should have proceeded to consider what the purpose behind the conduct was, that is, were the threats, intimidation, and injury done by [the respondent] for the purpose of exploiting [the complainant]? He failed to do so. 105. … Given the nature of the conduct found to exist, the trial Judge would have, by necessity found it intentional. The purpose element would have been next. It is only necessary that the accused’s purpose be exploitation, not that exploitation actually occur. … 106.

Sections 279.01(3), which creates a presumption that sub-section 279.01(1) is met if, absent evidence to the contrary, the accused lives with the Complainant, would also have established the exploitative purpose on the facts of this case. The trial Judge only references the presumption to say [the respondent’s] conduct is not “as envisaged in s.279.01(3) ” a strange reference to a

section which creates an evidentiary burden, not an offence. [ 10 9] The Crown’s submissions have merit. The trial judge expressly found that the respondent acted in a violent manner towards the complainant. However, as noted, the judge did not properly regard the evidence as he repeatedly stated it did not go towards the elements of the offence. This was a clear error of law.

Violent behaviour has often been described as being at the heart of a human trafficking offence [7] . [ 11 0] The judge’s failure to appreciate the importance of relevant, corroborative, and inculpatory evidence adduced by the Crown prevented him from contemplating the link between the respondent and his exploitation of the complainant. In other words, his analysis was halted prematurely. [ 11 1] Had the judge applied the proper legal framework, on this record, the actus reus may well have been established and the presumption would therefore have applied.

However, I need not determine if the offences would have been made out, rather, whether there is a reasonable degree of certainty the verdict would not have been the same but for the judge’s error. Conclusion [ 11 2] In my view, the Crown met its burden on appeal. In addition to establishing the above noted errors of law, the Crown demonstrated, to a reasonable degree of certainty, these errors might have had a material bearing on the acquittals. I would allow the appeal and order a new trial. Van den Eynden, J.A.