) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 653

CITATION : R. v. Stone and Bedford, 2013 ONSC 653 COURT FILE NO.: 97/12 DATE: 20130128 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – ALDAIN BECKFORD and DAVID MACKAY STONE ) ) ) ) ) ) ) ) E. O’Marra, for the Respondent J.

Miglin, for the Applicant David Stone ) ) HEARD: December 28, 2012 Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s. 486.4 of the Criminal Code of Canada RULING ON THE CONSITUTIONALITY OF S. 279.011 MILLER, J. [ 1 ] Aldain Beckford and David Stone are charged that they did unlawfully recruit and exercise control over the movements of J.M., a person under the age of 18 years, for the purpose of exploiting J.M., contrary to s. 279.011(1) (

b) of the Criminal Code of Canada . [ 2 ] David Stone brings an application for an order declaring s. 279.011 of the Criminal Code unconstitutional and quashing this count on the indictment. He argues that the legislation violates the principles of fundamental justice as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms .

He submits that the extended range of conduct prohibited by the offence, combined with a diminished mens rea and the imprecise and uncertain definition of exploitation renders the legislation void as it is overly broad, impermissibly vague and allows for conviction with an insufficient level of mens rea. He further takes the position that the s. 7 infringement cannot be justified under s. 1 of the Charter. [ 3 ] There is no issue that Mr. Stone has standing to challenge the constitutional validity of the legislation that creates the offence with which he is charged.

There is also no issue that the liberty interests protected by s. 7 of the Charter are engaged. Legislative History [ 4 ] In 2001, Canada included anti-trafficking provisions in the Immigration and Refugee Protection Act S.C. 2001, c. 27 to criminalize the act of trafficking persons into Canada from abroad.

Section 118(1) provides that “No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion.” [ 5 ] On May 13, 2002 Canada ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (“ Protocol ”) . [1] The

Preamble to this Protocol indicates that it is intended to be a universal instrument addressing all aspects of trafficking in persons, and to combat the exploitation of persons.

Article 2 sets out the explicit purposes of the Protocol , specifically

a) to prevent and combat trafficking in persons, paying particular attention to women and children;

b) to protect and assist the victims of such trafficking, with full respect for their human rights; and

c) to promote cooperation among States Parties in order to meet those objectives. [ 6 ]

Article 3 of the Protocol provides that: “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; [ 7 ]

Article 5 of the Protocol requires State Parties to criminalize the conduct covered by

Article 3 “when committed intentionally”.

[ 8 ] In 2005, the criminal offence of trafficking in persons in Canada was created by amendments to the Criminal Code contained in Bill C-49:

An Act to Amend the Criminal Code (Trafficking in Persons) to criminalize the trafficking of persons inside Canada’s borders. The amendments passed with all party support and the debates preceding their passage indicate a concern for the magnitude of the problem of human trafficking even within Canada. [ 9 ]

Section 279.01(1) of the Criminal Code provides that: 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.

(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid. [ 10 ] “Exploitation”, an essential element of the offence of human trafficking, is defined in s. 279.04 of the Criminal Code as follows: 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. (

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. [ 11 ] On June 29, 2010, the offence of trafficking in persons under the age of 18 years old was added to the Criminal Code . This offence provides for mandatory minimum sentences as follows: 279.011

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

a) to imprisonment for life and to a minimum punishment of imprisonment for a term of six 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 fourteen years and to a minimum punishment of imprisonment for a term of five years, in any other case. [ 12 ] On June 28, 2012, Bill C-310 received royal assent. This legislation made two further amendments to the Criminal Code provisions in respect of human trafficking. The first included human trafficking as one of the offences over which Canada exercises extraterritorial jurisdiction.

The second amendment added to s.279.04 as follows: 279.04(1) For the purpose 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.

(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.

(3) For the purposes of sections 279.01 to 279.03, a person exploits another person if they 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. [ 13 ] Mr. Stone takes the position that the latest amendment to s. 279.04 – which postdates the offence he is charged with – was to clarify the definition of exploitation as it was too vague. [ 14 ] Mr.

Stone posits that it is apparent from the legislative proceedings in respect of Bill C-310 that the additions to the existing definition of exploitation were in response to concerns from justice officials that the definition lacked detail and was difficult to understand and prosecute. [ 15 ] Mr. Stone relies on an entry in Hansard from Jack Harris, a New Democratic Party MP from St. John’s East: It is all very well to use the term “exploitation”, but without proper

definitions it is difficult for prosecutors and police to even know what evidence they have to present in order to get a conviction. I understand there have been only five prosecutions under this legislation since the amendments made to the Criminal Code in 2005. That seems to me to be an indication that there were serious deficiencies in

the law. The evidentiary information that is required was not specific; now it will be.[2] [16] Mr. Stone takes the position that the additions to the definition of exploitation are tantamount to an admission from thelegislature that the law as originally passed lacked precision.

He further takes the position that while the amendments may assist thetrier of fact, in so far as they provided statutory examples of exploitative conduct, they do not cure the constitutional defects that exist inthe legislation. [17] The Crown takes the position that the definition was amended in response to concerns that it was too narrow. Theamendments were meant to clarify that coercion was not limited to physical acts but included emotional and psychological harm.

TheCrown relies on the following entry in Hansard from MP Joy Smith, who introduced the amendment, in support of its position: The current definition [of exploitation] hinges on an assumption that victims feared for their own safety or for the safety of someoneknown to them so much that they were compelled to provide a labour or a service. This has often been interpreted as a concern for one’sphysical safety…The heart of this amendment is to provide an aid to the courts that clearly demonstrates the factors that constituteexploitive methods.

In my amendment I have proposed including threats of violence, force or other forms of coercion and fraudulentmeans.[3] [18] A review of the discussion that occurred in the House of Commons Debates as well as at the Standing Committee on Justiceand Human Rights in respect of this amendment supports the conclusion that the amendments were meant to clarify that coercion was notto be limited to physical acts but to include emotional and psychological harm. Analysis [19] Mr.

Stone’s argument is that while the human trafficking provisions of the Criminal Code may not independently offend thedefinitions of overbreadth, vagueness or mens rea, the combined weaknesses in the legislation in each of these areas cumulatively offends. 7 of the Charter. [20] He takes the position that it can reasonably be inferred that Parliament’s intention in drafting the actus reus of the offence sobroadly was to capture any individual who had any involvement with trafficking of a person at any stage of their transportation ormovement, no matter how slight their respective role may be.

Further, while this expansive definition may not make the offence overlybroad, per se, the uncertainty and vagueness in which Parliament has defined exploitation generally, and as it relates to the mens rea ofhuman trafficking specifically, renders the collective scope of the provisions overly broad and impermissibly vague. [21] The interrelation of overbreadth and vagueness was described by the Ontario Court of Appeal in R. v. Zundel (ON CA), [1987] O.J. No. 52 at paragraph 62, and cited with approval by the Supreme Court of Canada in R. v.

Heywood, (SCC), [1994] S.C.J. 101 at paragraph 47: Vagueness and overbreadth are two concepts. They can be applied separately, or they may be closely interrelated. The intended effect ofa statute may be perfectly clear and thus not vague, and yet its application may be overly broad. Alternatively, as an example of the twoconcepts being closely interrelated, the wording of a statute may be so vague that its effect is considered to be overbroad. [22] The Supreme Court of Canada summed up the doctrine of vagueness in R. v. Nova Scotia Pharmaceutical Society (SCC), [1992] S.C.J.

No. 67 at paragraph 71: “a law will be found unconstitutionally vague if it so lacks in precision as not togive sufficient guidance for legal debate.” And at paragraph 61: By setting out the boundaries of permissible and non-permissible conduct, these norms give rise to legal debate. They bear substance,and they allow for a discussion as to their actualization.

They therefore limit enforcement discretion by introducing boundaries, and theyalso sufficiently delineate an area of risk to allow for substantive notice to citizens. [23] The Supreme Court of Canada provided guidance on determining overbreadth of legislation in Heywood, and also in Ontariov. Canadian Pacific Ltd. (SCC), [1995] S.C.J. No. 62. First, it is necessary to determine what were the objectives of thegovernment in passing the legislation in question. Second, to consider the means chosen by the State to achieve that objective.

The Courtmust then determine whether the legislation accords with the principles of fundamental justice enshrined in s. 7 of the Charter thatrequire the means chosen by the State to be no broader than necessary to accomplish that objective. [24] In Heywood at paragraph 51, the Supreme Court indicated: While the courts have a constitutional duty to ensure that legislation conforms with the Charter, legislatures must have the power to makepolicy choices.

A court should not interfere with legislation merely because a judge might have chosen a different means ofaccomplishing the objective if he or she had been the legislator.

And at paragraph 52: However, before it can be found that an enactment is so broad that it infringes s. 7 of the Charter, it must be clear that the legislationinfringes life, liberty or security of the person in a manner that is unnecessarily broad, going beyond what is needed to accomplish thegovernmental objective. [25] In Canadian Pacific, at paragraph 10, the Supreme Court of Canada outlined the first step of the analysis: Before the state's means can be compared to its objectives, it is necessary to determine what exactly those means are -- that is, the

statutory provision that is at issue must be interpreted, in order that its true scope be identified. [26] The Supreme Court of Canada recently reaffirmed the Heywood and Canadian Pacific approach to overbreadth in R. v.Khawaja 2012 SCC 69. [27] In that case, dealing with the terrorism provisions of the Criminal Code the Court held at paragraph 44 that: … like any statutory provision, [the terrorism

section of the Criminal Code] must be interpreted with regard to its legislative purpose.That purpose is "to provide means by which terrorism may be prosecuted and prevented" … not to punish individuals for innocent,socially useful or casual acts which, absent any intent, indirectly contribute to a terrorist activity. [28] The approach taken by the Supreme Court in Khawaja takes into account the purpose of the legislation in determining themens rea required for an offence to be committed.

At paragraph 45 the Court wrote: “This purpose commands a high mens reathreshold.” The Court went on to describe the mens rea for that offence as being a subjective purpose; the heightened mens rearequirement having the effect of exempting those who may unwittingly assist terrorists or who do so for a valid reason. [29] Mr. Stone acknowledges that Parliament had a valid objective in enacting the Criminal Code provisions against humantrafficking.

He argues that the problem is the imprecision with which the provisions have been drafted, and that that this imprecisionleads to the prospect of persons being found to be culpable for acts which do not accord with the serious stigma and sanctions resultingfrom being found guilty of a human trafficking offence. [30] Mr. Stone takes the position that the greatest ill of these provisions is that they do not require that any exploitation actuallyoccur.

He further argues that the description of the conduct constituting the offence, specifically that which “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 bethreatened,” is so imprecise that it fails to permit anyone to predict whether their conduct would be criminal. It is his position that theconcept of exploitation relies on an appreciation of another person’s reasonable belief.

He contends that this can never be defined withany certainty, and it remains wholly speculative, uncertain and ultimately impermissibly vague. [31] Mr. Stone suggests that Parliament’s objectives could be met by language more closely mirroring that in the UN Protocol. Hepoints to the human trafficking provisions of the IRPA as providing a more specific definition of the means by which the offence iscommitted. [32] In Heywood, at paragraph 62 the Supreme Court approved the use of reasonable hypotheses in determining whetherlegislation violates the Charter. [33] Mr.

Stone puts forward some hypothetical situations which, he argues, would improperly be captured by the existinglegislation. In each hypothetical situation, the accused is responsible for transporting persons he knows or ought to know are beingexploited. Each of the hypothetical situations is predicated on an

interpretation of the legislation that would criminalize “facilitation”without the requirement that it be “for the purpose” of facilitating exploitation. [34] It is Mr. Stone’s position that s. 279.01 and s.279.011 are worded such that they incorporate a diminished mens reacomponent and capture a breadth of conduct that lacks the moral blameworthiness required by the penalties mandated upon convictionand the stigma of being a human trafficker. He posits that it is not necessary for the Crown to prove the “purpose” component of theoffence in order to obtain a conviction.

Rather, it is sufficient if the acts are done only to facilitate the exploitation of a person. [35] I disagree.

The words “for the purpose of exploiting them or facilitating their exploitation” used in ss. 279.01 and 279.011clearly require that the purpose component is necessary to both exploiting and facilitating exploitation for the offence to be made out. [36] I also find that, as in Khawaja, the human trafficking provisions of the Criminal Code must be interpreted with regard to theirlegislative purpose – specifically to prevent and combat trafficking in persons and to criminalize conduct “when committedintentionally” and not to punish individuals for innocent, socially useful or casual acts which, absent any intent, indirectly contribute tothe trafficking of persons. [37] Mr.

Stone takes the position that that even if the scope of the provision is narrowed by such an

interpretation, the offenceremains overly broad and vague. He posits that, in contrast to Khawaja, the actus reus of the offence of human trafficking is stillextraordinarily broad and does not contain any qualifiers or restraints, such as the inclusion of a “means” element, or a requirement thatthe acts be committed “knowingly”. [38] As in Khawaja, it is clear that the significant consequences of a finding of guilt for trafficking in persons import a heightenedmens rea commensurate with the potential consequences of a finding of guilt.

As the Supreme Court held in Khawaja at paragraph 50,because the offence carries with it a significant sentence of imprisonment and significant stigma, the provision is meant to criminalizeconduct that presents a real risk for Canadian society. [39] The Crown takes the position that “for the purpose” requires a subjective state of mind directed at the prohibited consequence– the exploitation or facilitation of the exploitation of the person. This requires both intent and knowledge. As the Supreme Court ofCanada indicated in R. v. Briscoe 2010 SCC 13 , [2010] S.C.J.

No. 13 at paragraph 18: knowledge of the perpetrator's intentionto commit the crime and the intention of assisting the perpetrator in its commission are necessary. [40] This, I find, is in keeping with the high degree of mens rea required in order for the offence to be committed, and eliminatesthe risk of punishing individuals for innocent, socially useful or casual acts which, absent any intent, indirectly contribute to thetrafficking of persons. [41] Further, I do not find that the terms “exploiting” and “exploitation” as used in the human trafficking provisions are difficultto understand or to apply.

The Ontario Court of Appeal in R. v. Bedford, 2012 ONCA 186 at paragraph 267 addressed the overbreadth of

s. 212 of the Criminal Code by reading into the provision the words “in circumstances of exploitation”. The Court specifically found: “[t]hat phrase provides a sufficient degree of precision.” [ 42 ] The fact that no exploitation need actually occur for the offence to be committed does not in my view, render the human trafficking provisions unconstitutional. As the Supreme Court of Canada recently affirmed in relation to s. 264.1(1) (

a) of the Criminal Code in R. v. O’Brien , 2013 SCC 2 at paragraph 13 , there is no requirement that the recipient of the threats uttered by the accused feel intimidated by them or be shown to have taken them seriously. All that needs to be proven is that they were intended by the accused to have that effect . [ 43 ] In relation to that same provision of the Criminal Code , the Supreme Court has made it clear that the reasonable person standard is applicable: R. v. McCraw [1991] S.C.J. No. 693 .

I do not find that the provisions of the human trafficking legislation that criminalize 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” is difficult to understand or to apply or runs the risk of overbroad application. [ 44 ] I have considered Mr. Stone’s argument that while the human trafficking provisions may not independently offend the principles of overbreadth, vagueness or mens rea , the cumulative effect of weaknesses in these areas of the provisions violate s. 7 .

I do not agree. [ 45 ] I find that a purposive

interpretation of the heightened mens rea of the offence together with the easily understood and applicable concepts of exploitation and the reasonable person standard sufficiently delineate the area of risk to allow for substantive notice to citizens as to what conduct will attract criminal sanction. I am also satisfied that the provisions do not run the risk of overbreadth in their application. [ 46 ] In addition, I have reviewed the reasons of the British Columbia Supreme Court in R. v. Appulonappa , 2013 BCSC 31 released subsequent to the hearing in this matter.

That case considered the constitutionality of s. 117 of the Immigration and Refugee Protection Act which prohibits human smuggling. The trial judge found that the

section was overbroad, thus infringing s. 7 , and that it was not justified under s. 1 . It is clear that in s.117 of the IRPA Parliament selected markedly different means from those used in ss.279.01 and 279.011 of the Criminal Code . Given this, I did not find the reasons in Appulonappa particularly helpful in this matter. [ 47 ] The Applicant has not met his onus of showing on a balance of probabilities that s. 279.011 of the Criminal Code violates s. 7 of the Charter . The application is dismissed. MILLER, J. Released: January 28, 2013 R. v.

Stone and Bedford, 2013 ONSC 653 COURT FILE NO.: 97/12 DATE: 20130128 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ALDAIN BECKFORD and DAVID MACKAY STONE S. 7 CHARTER RULING MILLER, J.

Released: January 28, 2013