



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. Alexis-McLymont, 2021 ONCA
    858

DATE: 20211202

DOCKET: C65062

Hoy, Benotto and Sossin JJ.A.

BETWEEN

Her Majesty the Queen.

Respondent

and

Jaiden Alexis-McLymont

Appellant

Breana Vandebeek and Colleen McKeown,
    for the appellant

Jeremy D. Tatum, for the respondent

Heard: November 17, 2021

On appeal
    from the conviction entered on September 28, 2017, and the sentence imposed on February
    20, 2018 by Justice Ian F. Leach of the Superior Court of Justice, sitting with
    a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of human trafficking, procuring, and
    receiving a material benefit from someone under 18. He received a global
    sentence of six years. He appeals the convictions, alleging that the judges
    charge to the jury was unfair and was in error with respect to the instructions
    on each count.

Brief background

[2]

The Crown alleged that the appellant recruited the complainant, a
    15-year-old homeless girl who was addicted to crystal meth, to engage in sex
    work for his profit. The Crown relied on a series of messages between the
    appellant and the complainants boyfriend which discussed making money from the
    complainants sex work. In these messages, the appellant came up with a fee
    structure and discussed his cut.

[3]

The appellant brought the complainant to a hotel room where two other
    men (the co-accused at trial) were present. The appellant told her that
    performing sex acts was the only way she could get more drugs for her
    addiction. One of the men was known by the appellant to be a pimp. When the
    appellant left the hotel room, the other two men refused to let her leave, sexually
    assaulted her, and trafficked her for sex.

[4]

The complainant testified at trial. The appellant did not testify and
    called no evidence.

The jury charge

[5]

The appellant submits that the jury charge was both unfair and wrong in
    law.

[6]

The unfairness arose, according to the appellant, because the trial
    judge editorialized the evidence, did not adequately explain the appellants defence,
    made references to there being no evidence to contradict portions of the
    Crowns case, and did not emphasize the inconsistencies in the complainants
    evidence. The appellant submits that, in the result, there was a burden on him
    to provide evidence in violation of the presumption of innocence, and that the
    jury must have been aware that the trial judge viewed the appellant as guilty.

[7]

We do not accept these submissions.

[8]

The trial was not unfair, and the burden of proof was not reversed. The
    trial judge gave multiple instructions: (i) confirming that the jurors were the
    judges of fact and when he spoke about the evidence, they were free to
    disagree; and (ii) that the burden of proof was on the Crown and that never
    changed. The trial judge also gave an extensive review of the inconsistencies
    in the complainants evidence.

[9]

The appellant further submits that the trial judge made legal errors
    with respect to each count.

Human trafficking

[10]

The
    relevant sections of the
Criminal Code
, R.S.C. 1985, c. C-46
provide:

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 [Emphasis
    added.]

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 another person known to them would be threatened if they failed to provide, or
    offer to provide, the labour or service.

[11]

The
    appellant submits that the judge erred in relation to the purpose element of
    the section. The appellant submits that the judge erred by instructing the jury
    that the actual exploitation of the complainant (which was not in dispute)
    could lead the jury to infer that the appellant intended to exploit her. In
    other words, the trial judge concentrated on the
actus
    reus
and ignored the
mens rea
.
The appellant says that there was no evidence of his state
    of mind in relation to the exploitation. In particular, he submits that there
    was no evidence that he was aware of what was happening in the hotel room when
    he was not there, and that he did not witness the coercive conduct of the other
    two men. Consequently, it was wrong for the jury to infer that his purpose was
    to exploit or facilitate the exploitation of the complainant because there was
    insufficient evidence of knowledge on his part.

[12]

We
    do not accept this submission. The trial judge referred the jury to the communications
    before the appellant brought the complainant to the hotel room. The evidence also
    included that the appellant left the complainant to work for a known pimp, returned
    to the hotel room after the complainant had been assaulted and trafficked, and again
    left her in the control of the known pimp. It was open to the jury to infer, based
    on the evidence, that the appellants actions were for the purpose of exploiting
    the complainant or facilitating her exploitation.

Procuring a person under the age of 18

[13]

The
Criminal Code
provides:

286.3(2)
    Everyone who procures a person under the age of 18 years to offer or provide
    sexual services for consideration or, for the purpose of facilitating an
    offence under subsection 286.1(2), recruits, holds, conceals or harbours a
    person under the age of 18 who offers or provides sexual services for
    consideration, or exercises control, direction or influence over the movements
    of that person, is guilty of an indictable offence

[14]

This courts decision in
R. v. Gallone
,
    2019 ONCA 663, 147 O.R. (3d) 225, at para. 59 provides that there are
two modes of committing the
actus reus
of the
    procuring offence: (i)
the
accused procures a person
    to offer or provide sexual services for consideration; or (ii) the accused
    recruits, holds, conceals or harbours a person who offers or provides sexual
    services for consideration, or exercises control, direction or influence over
    the movements of that person.

[15]

The indictment under which the accused was
    charged only referred to the first mode, not the second. The trial judge, who
    did not have the benefit of
Gallone
, went beyond the first mode to
    include the second. Since the two modes are distinct with separate mental
    states required for each, the appellant alleges that the charge included a
    fatal error.

[16]

We do not accept this submission for two related
    reasons.

[17]

First, the trial judge repeated, at least five
    times, that the fault requirement for procuring is satisfied if the accused
    intentionally caused or induced the person to provide sexual services for
    consideration. The charge also repeated the requirement of intent to procure.
    The jury was clearly instructed on the fault element for the first mode of
    committing the procuring offence.

[18]

Second, there is no prejudice to the appellant. He
    was convicted of human trafficking, the elements of which include the second
    mode of committing the
actus reus
of the procuring offence. In that
    regard, the trial judge instructed many times that the jury must be satisfied
    that the appellant intentionally recruited, held, concealed, harbored, or
    intentionally exercised control, direction, or influence over the movements of
    the complainant. In the context of the charge as a whole, we are satisfied that
    the trial judge effectively charged the jury on the
mens rea
for the
    second mode of the procuring offence.

Material benefit from human trafficking

[19]

The
Criminal Code
provides:

279.02(2) Everyone
    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 279.011(1), is guilty of an indictable offence

[20]

The
    appellant submits that the verdict was unreasonable because there was no
    evidence that he received a benefit from the complainants sex work. He further
    submits that, if the jury was to rely solely on circumstantial evidence, a
Villaroman

instruction should
    have been given confirming that his guilt was the only reasonable inference:
    see
R. v. Villaroman
, 2016 SCC 33, [2016]
    S.C.R. 1000.

[21]

We
    do not accept this submission.

[22]

Villaroman
, at para. 20, refers with
approval
    to
R. v. Fleet
(1997), 26 O.R. (3d) 542 (C.A.),
and at paras.
    20 and 30 rejects the necessity for any formula of words to be used in the case
    of circumstantial evidence. According to
Fleet
,
    as cited in
Villaroman
, at para. 20, the
    object may be achieved by charging the jury:

a)

in
    accordance with the traditional language of proof beyond a reasonable doubt; or

b)

in
    accordance with that language and pointing out to the jury the other inferences
    that the defence says should be drawn from the evidence and the necessity to
    acquit the accused if any of those inferences raises a reasonable doubt; or

c)

charging the jury that it must be satisfied beyond a reasonable
    doubt that the guilt of the accused is the only reasonable inference to be
    drawn from the reasonable facts.

[23]

The
    trial judge reminded the jury that there was no direct evidence that the
    appellant had received a benefit. When he re-instructed the jury in response to
    a question, he emphasized that the Crown must prove the receipt of a material
    benefit beyond a reasonable doubt. He further said that any reasonable doubt in
    this regard must result in an acquittal.

[24]

The charge complies with the first two options
    in
Villaroman.


[25]

The
    evidence was clear that the appellant had a financial motive for recruiting the
    complainant. The complainant was given none of the money paid for her services.
    She was given only drugs. The appellant had earlier communicated his cut. It
    was open to the jury to conclude that the appellant received a material
    benefit.

[26]

The charge was not in error.

[27]

Accordingly, the appeal is dismissed.

Alexandra Hoy J.A.

M.L. Benotto J.A.

L. Sossin J.A.


