



WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (2.1),
    (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall
    continue.  These sections of
the Criminal Code
provide:

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    information that could identify the victim or a witness shall not be published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, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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).

(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.

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, make the order.

(3)     In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43,
    s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48;
    2015, c. 13, s. 18.

486.6(1)       Every person who
    fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sinclair, 2020 ONCA 61

DATE: 20200130

DOCKET: C64886

Pardu, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marcus Sinclair

Appellant

Andrea Vanderheyden, for the appellant

Jeremy Tatum, for the respondent

Heard: January 6, 2020

On appeal from the convictions entered
    on May 17, 2017 and the sentence imposed on October 12, 2017 by Justice Nancy
    Mossip of the Superior Court of Justice.

Pardu J.A.:

[1]

The appellant appeals from convictions for trafficking in persons over
    the age of 18 years and theft. He submits that the trial judge erred in her
    charge to the jury in three respects and further by amending the indictment
    charging theft. Specifically, the appellant argues that the trial judge:

(1)

provided misleading
    instructions on the meaning of exploitation as defined in s. 279.04(1) of the
Criminal Code
, R.S.C., 1985, c. C-46;

(2)

did not adequately
    relate the Facebook messages from the complainant to the appellant to the
    principles governing prior inconsistent statements and explain more fully the
    significance those messages had for the complainants credibility;

(3)

did
    not adequately explain psychological safety as it relates to the definition of
    exploitation; and

(4)

inappropriately
    amended the indictment from an allegation that the appellant stole four cell
    phones and a tablet to theft of three cell phones and a tablet, to conform to
    the complainants evidence.

[2]

I do not accept these arguments and would dismiss the appeal from
    conviction.

[3]

The appellant also appeals from his sentence, alleging the trial judge
    erred in failing to consider his pretrial custody. The Crown concedes that the
    appellant should have been given this credit. I would allow the appeal from
    sentence and vary the sentence accordingly.

A.

BACKGROUND

[4]

The complainant was homeless and living in a shelter when she met the
    appellant. She was about 18 or 19 years old. She was working as a sex trade
    worker. Her two children were in custody of the Childrens Aid Society. The
    appellant offered her a place to live in his apartment. They were together for
    approximately seven years.

[5]

The complainant said the appellant led her to believe she could have a
    better life and he would adopt her children if she worked hard. She testified
    that he mentally abused and controlled her, saying that he:

·

kept most of the money she earned

·

took calls from clients, posted ads for her, told her what to
    charge clients, and devised a pseudonym for her

·

sometimes hid in the hotel room when she was with a customer, and

·

called her lazy for not wanting to work and not taking calls from
    clients.

[6]

She said she tolerated the way he treated her because she had nowhere to
    go, no money, no friends or family to turn to, and he was all she had. She also
    said that, despite not being in a romantic relationship with the appellant, she
    felt attached to and invested in him due to the time and money she had given
    him.

[7]

She had hundreds of clients over the years when she was with the
    appellant. During cross-examination, the complainant said that no one told her
    there would be consequences if she refused a client. Sometimes she left the
    appellant and went to other cities, although she still provided him with her
    earnings from Edmonton, for example.

[8]

The appellant did not testify. At trial, his defence was that he was the
    complainants friend who helped her with various aspects of her sex trade work,
    at the complainants request. The appellant also took the position that the
    complainant chose to work in the sex trade of her own free will and denied any
    coercion or violence on his part.

B.

STATUTORY PROVISIONS

[9]

The appellant was charged under section 279.01(1)
    of
Criminal Code
, which reads as follows:

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

Exploitation is defined under section
    279.04(1) of the
Criminal Code
:

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.

[10]

The first element of the offence is an action by
    the accused, who must be a person who recruits, transports, transfers,
    receives, holds, conceals or harbours a person, or exercises control, direction
    or influence over the movements of a person. This court explained the meaning
    of influence in this context in
R. v. Gallone
, 2019 ONCA 663, 147
    O.R. (3d) 225, at para. 47:

Consistent with
Perreault
, I would
    define exercises influence over the movements of a person for the purposes of
    s. 279.01(1) as something less coercive than exercises direction. Exercising
    influence over a persons movements means doing anything to affect the persons
    movements. Influence can be exerted while still allowing scope for the persons
    free will to operate. This would include anything done to induce, alter, sway,
    or affect the will of the complainant. Thus, if exercising control is like
    giving an order that the person has little choice but to obey, and exercising
    direction is like imposing a rule that the person should follow, then
    exercising influence is like proposing an idea and persuading the person to
    adopt it. [Footnote omitted.]

[11]

There was no substantial dispute as to this
    element of the offence at trial. There can be no doubt the appellant exercised
    influence over the complainant by persuading her to live with him, by telling
    her how much to charge customers, and by posting ads for her to work as a sex
    trade worker, among other things.

[12]

The second element is that the accuseds actions
    must be for the purpose of exploiting or facilitating the exploitation of the
    complainant. Actual exploitation is not required. The focus is on the accuseds
    state of mind. Where exploitation arises on the facts, inferring that the
    accuseds purpose was to exploit the victim will usually be a relatively
    straightforward task:
Gallone
,
at para. 54;
R. v. A.A.
,
2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 87.

[13]

The third element is met if the accused causes
    the complainant to provide or offer to provide a service. Again, there was no
    dispute that the complainant provided and offered to provide services as a sex
    trade worker.

[14]

The fourth element is that the accused so causes
    the complainant to provide or offer 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. Actual exploitation is not necessary. The fourth element is assessed
    on an objective basis. Safety includes protection from psychological harm:
A.A.
, at paras. 71-73;
Gallone
, at paras. 53-54.

[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 complainants movement

·

control of finances

·

financial benefit to the accused, and

·

use of social media to assert control or monitor
    communications with others.

For an example in which some of these
    factors are applied, see
R. v. Crosdale
, 2018 ONCJ 800, at paras. 139,
    144, and 148-169.

C.

ANALYSIS

[16]

I turn to a consideration of the specific errors
    alleged by the appellant.

(1)

The trial judge provided proper instructions on the meaning of
    exploitation as defined in s. 279.04(1) of the
Criminal
    Code

[17]

The
    appellant points to the following section of the charge:

Let us look at the definition of
    exploitation. We can take out the words or the safety of a person known to
    them, because there is no evidence that [the complainant] felt the safety of
    another person would be threatened. The labour or service [the complainant]
    said she provided was that of prostitution. It is not necessary for this
    offence that you find that prostitution occurred, though [the complainant]
    testified that it did. As well, if you accept [the complainants] testimony as
    to Mr. Sinclair advertising her sexual services on certain websites known for
    this purpose, or answered calls on her behalf, then that conduct would come
    with the definition of offer to provide a service.

[18]

The appellant says this instruction was unclear and
    conflated the activity of offering to provide services for a complainant with
    forcing a complainant to offer to provide services. He argues that the trial
    judge essentially told the jury that because the appellant advertised the
    complainants services and answered calls for the complainant, his behaviour
    fell within the definition of offering to provide a service.

[19]

I do not agree. In this portion of the charge,
    the trial judge was addressing the third element as described above, about
    which there was little controversy. This portion of the charge had nothing to
    do with the appellants purpose or whether the conduct was exploitive.

(2)

The trial judge provided proper instructions regarding the
complainants Facebook messages and prior inconsistent statements

[20]

After the complainant spoke to police and the
    appellant was charged, the complainant sent a number of Facebook messages to
    the appellant, including the following:

·

You never were the bad guy.

·

I want this to work I will fix it

·

They want to tap my phone delete the messages

·

You the realize nigga Ive ever met I miss you

It
    ain't right without you

·

I have enough to help you

Let
    me help you we was good

Here
    everything I said to them was a lie I want this to work.

·

I only still wanna be your partner if you want
    me too

·

Can u put something up for me

[21]

The trial judge gave the jury full and legally
    correct instructions on the use of prior inconsistent statements. She reminded
    the jury that the complainant had agreed that she had numerous communications
    with the appellant on Facebook, that they would have the written communications
    with them in the jury room, and that she was not going to go through them in
    her charge.

[22]

This was sufficient in the context of a three-day
    jury trial, given that the jury had the written communications with them during
    their deliberations. The jury acquitted the appellant of two counts of assault
    and one count of withholding documents, so it is clear the jury did not
    uncritically accept the complainants testimony.

(3)

The trial judge adequately explained psychological safety as it
    relates to the definition of exploitation

[23]

The
    trial judge instructed the jury on this issue as follows:

The reference to safety in the above
    definition requires further elaboration. This definition does not require that [the
    complainants] safety actually be threatened, and safety includes a
    consideration of psychological safety.

Based on all of
    the evidence, if you find either that it was reasonable that [the complainant]
    felt her safety was threatened, or simply that it could reasonably be expected
    that a person in [the complainants] situation would believe that her safety,
    either physical or psychological, was threatened, for example by any conduct
    that you find Mr. Sinclair said or did to her, that part of the definition
    would also be met. The test to be proved by the Crown is not whether [the
    complainant] was actually threatened. The test is whether you find the conduct
    of Mr. Sinclair in all the circumstances, could reasonably be expected to cause
    [the complainant] to believe that her safety was threatened.



So the evidence
    related to this question is: [the complainant] testified that she felt she had
    to go to work as a prostitute, because she was afraid of Mr. Sinclair, in other
    words that her safety was threatened. She said he did punch her on one occasion
    and tipped her out of a chair on another occasion when he was angry. You will
    recall that she also said they had numerous arguments in which he insulted her.
    She said he threw the fact that her children were taken by the CAS in her face.
    Remember what I said about safety including psychological safety as well as
    physical safety.

[The complainant] also testified that Mr.
    Sinclair kept most of the money she made as a prostitute. [The complainant]
    said she had no place to live; she had no friends or family. [The complainant]
    told you that she stayed because she was emotionally abused by Mr. Sinclair,
    and he was all she had.

[24]

I do not agree that the trial judge needed to
    import the notions of actual serious bodily harm or subjective fear for
    safety drawn from other statutory contexts. The use of the word safety in
    itself suggests more than a trivial interference with either physical or
    psychological well-being. The assessment here was an objective one: could the appellants
    conduct be reasonably expected to cause [the complainant] to believe that her
    safety was threatened.

[25]

In the circumstances of this case, no prejudice
    was occasioned by the trial judges failure to further define safety or
    psychological. On a functional review of the charge, the submissions of
    counsel, and the evidence adduced at trial, I am satisfied that the jury was
    left with a sufficient understanding of the facts as they relate to the
    relevant issues:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at para. 14.
    Put another way, the jurors would adequately understand the issues involved,
    the law relating to the charge the accused is facing, and the evidence they
    should consider in resolving the issues:
R. v. Cooper
, [1993] 1
    S.C.R. 146, at p. 163;
R. v. Newton
, 2017 ONCA 496, 349 C.C.C. (3d)
    508, at para. 13.

(4)

The trial judge did not err in allowing the amendment
    to the indictment

[26]

Section 601(3)(b) of the
Criminal Code
provides
    that a court shall, at any stage of the proceedings, amend the indictment where
    it appears that the indictment fails to state or states defectively anything
    that is requisite to constitute the offence, or is in any way defective in
    substance, and the matters to be alleged in the proposed amendment are
    disclosed by the evidence taken on the trial. In deciding whether to grant the
    amendment, as per s. 601(4) of the
Criminal Code
, the court must
    consider the following:

(a)

the matters disclosed by the evidence taken on
    the preliminary inquiry (if relevant);

(b)

the evidence taken on the trial, if any;

(c)

the circumstances of the case;

(d)

whether the accused has been misled or
    prejudiced in his defence by any variance, error or omission; and

(e)

whether, having regard to the merits of the
    case, the proposed amendment can be made without injustice being done.

[27]

Here, the amendment changed the number of
    cellphones alleged to have been stolen from four to three. There was no dispute
    the property was valued at less than $5000. The appellants defence was that he
    did not steal any of the complainants property, and that the Crown did not
    prove the property belonged to the complainant.

[28]

I agree with the Crown that the appellant was
    not prejudiced by the amendment. The nature of the property alleged to have
    been stolen did not change and the offence remained the same. The jury had the complainants
    inconsistent statements about the number of cell phones. The jury could use
    those statements to assess her credibility regarding the theft allegation.

[29]

The trial judge did not err in permitting the
    amendment.

(5)

Sentence appeal

[30]

The appellant was sentenced to 30 months incarceration.
    Before release on bail, he spent 14 days in pretrial custody. The Crown
    concedes that the sentence should be varied to give 21 days credit for the
    pretrial custody.

(6)

Language used to describe the complainant

[31]

The
    complainant was a troubled, homeless, and vulnerable person when she met the
    appellant. The jury concluded that he exploited her, thereby victimizing her. I
    have chosen to refer to her in this decision as a sex trade worker rather
    than a prostitute because, in my view, the descriptor prostitute carries
    with it negative connotations that risk dehumanizing or demeaning a victim or
    complainant. Sex trade worker is a more neutral descriptor that lessens this
    risk.

[32]

As
    pointed out in
R. v. Barton
, 2019 SCC 33, 376
    C.C.C. (3d) 1, at para. 230,
per
Abella and
    Karakatsanis JJ. (dissenting in part, but not on this point):

Based on studies that found that jurors were more likely to
    convict a defendant accused of raping a woman with a chaste reputation than an
    identical defendant charged with assaulting a prostitute, this Court in
Seaboyer
expressly warned against the use of the word
    prostitute because the use of this term is intrinsically linked to twin
    myths reasoning and can lead to substantial prejudice in the way the jury assesses
    the evidence. [Citations omitted.]

[33]

The
    word prostitute is no longer used in current provisions of the
Criminal Code
.

D.

DISPOSITION

[34]

For the reasons above, I would dismiss the
    conviction appeal and would allow the sentence appeal by reducing the sentence
    to 29 months and 7 days to reflect the appellants pretrial custody credit.

Released: January 30, 2020

GP

G.
    Pardu J.A.

I
    agree David Brown J.A.

I
    agree Grant Huscroft J.A.


