



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Gallone, 2019 ONCA 663

DATE: 20190820

DOCKET: C64738

Hoy
    A.C.J.O., Hourigan and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Alicia Gallone

Respondent

Vallery Bayly and Christine Bartlett-Hughes, for the
    appellant

Breana Vandebeek, for the respondent

Heard: June 5, 2019

On appeal from the acquittals entered by Justice David E.
    Harris of the Superior Court of Justice, sitting with a jury, dated November
    30, 2017.

Hoy A.C.J.O.:

[1]

The Crown appeals the respondents acquittal of
    human trafficking (s. 279.01(1)), procuring a person to offer or provide sexual
    services for consideration (s. 286.3(1)), and advertising sexual services for
    consideration (s. 286.4). It submits that the trial judge erred in law by
    misinterpreting these provisions, that he consequently misdirected the jury,
    and that the errors might reasonably be thought, in the circumstances of this
    case to have had a material bearing on the respondents acquittals.

[2]

For the following reasons, I agree that the trial
    judge misdirected the jury. I would order a new trial.

[3]

Because I would order a new trial, I will provide only
    a brief, broad outline of the events giving rise to the charges. I will then
    set out the
Criminal Code

provisions in
    question, review the charge provided to the jury regarding those provisions,
    and explain how the trial judge erred in his charge.

I.

BACKGROUND

[4]

The charges arose out of events that occurred over a two-week period in
    November 2015.

[5]

The respondent was 22 years of age and had experienced a difficult
    upbringing. She began working at a strip club as a dancer. It was her first
    involvement in the adult entertainment industry. She met the complainant on
    November 5, 2015  the day that the complainant began working as a dancer at
    the strip club and about a month after the respondent had begun working there.

[6]

The complainant was 18 years of age and had never worked at an adult
    entertainment establishment before. She had been kicked out of her mothers home
    and was living in an apartment, receiving welfare.

[7]

The respondent and the complainant quickly developed a relationship.
    When the respondent said she needed a place to stay, the complainant let her
    stay at her apartment. The respondent stayed there over the next two weeks.

[8]

The complainant and the respondent were the only two witnesses at trial.
    Although they described the same general series of events, their evidence
    diverged about the nature of their relationship and the extent of the
    respondents involvement in the sale of the complainants sexual services.

[9]

The series of events was generally as follows. On November 17,
    advertisements for the complainants sexual services, featuring sexualized
    photos, were posted on the website Backpage. On the same day, a client showed
    up at the complainants apartment, but the complainant refused to engage in
    anal intercourse with him and he left. On November 18, a male acquaintance of
    the respondent and another man picked up the complainant and the respondent and
    drove them first to one condo, and then to another. At each condo, the
    complainant had intercourse with a client.

[10]

Early in the morning of November 19, the respondent woke the complainant
    and told her that one of the clients wanted to see her again. When the client
    arrived, the complainant went outside, obtained money from the client, returned
    and gave money to the respondent, and then left with the client. The client
    returned the complainant to her apartment about a day and a half later.

[11]

After the client dropped the complainant off at the apartment, the
    respondent left. In the respondents absence, the complainant called her
    mother, who paid for a cab. When the complainant arrived at her mothers home,
    she broke down and explained the trouble she had been going through. She did
    not explain how she had met the respondent. Her mother took her to the police
    station.

[12]

In her evidence at trial, the complainant described several occasions
    when she said the respondent became angry with her while they were living
    together. She also testified that it was the respondent who brought up the
    topic of escorting, and it was the respondent who posted the ads on Backpage
    and told her a client would be showing up at the apartment. According to the
    complainant, when she did not get money from that client, the respondent became
    angry with her, and, the next day, the respondent brought up the topic of
    escorting again. The complainant testified that she went along with what the
    respondent suggested because she was scared after the respondents previous
    episodes of anger. She also testified that she gave the money she received from
    clients to the respondent.

[13]

The respondent testified that it was the complainants idea to sell her
    sexual services and that they did the Backpage posting step-by-step together,
    using the respondents phone and photographs that a male friend of the
    complainant had taken. The respondent testified that she contacted her male
    acquaintance when the complainant asked
her if she knew anyone
    who could help the complainant with escorting. The respondent said that the
    complainant gave all of the money she received from the condo clients to one of
    the males who brought them to the condos. The respondent testified that she
    argued with the males about taking money from the complainant. Ultimately, one
    of the males returned half the money. The next day, when the complainant left
    the apartment to go with one of the clients again, the respondent testified
    that the complainant gave her some money to pay her back for the times the
    respondent had been paying for everything.

II.

HUMAN TRAFFICKING

A.

The elements of the offence

[14]

The human trafficking offence in s. 279.01 was enacted in November 2005
    by Bill C-49,
An Act to amend the Criminal Code (trafficking in persons)
,
    1st Sess., 38th Parl., 2005 (assented to 25 November 2005), S.C. 2005, c. 43.

[15]

The relevant portions of the offence read as follows:

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.

[16]

Exploitation is defined in s. 279.04:

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 fail 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.

[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, 327 C.C.C. (3d) 377, at paras. 79, 82. More
    will be said about these elements below in the course of my analysis of the
    trial judges charge regarding this offence.

B.

The trial judges charge
    on human trafficking

[18]

The human trafficking charge was described on
    the indictment as follows:

Alicia GALLONE stands charged:

1.       That she  did unlawfully
[1]
recruit, conceal or exercise
    control, direction or influence over the movements of [the complainant] for the
    purpose of exploiting or facilitating the exploitation of that person, contrary
    to section 279.01(1) of the Criminal Code of Canada[.]

[19]

The trial judge began his charge on this offence
    by directing the jury on its conduct element, tailored with reference to the
    manner in which the offence had been described: So, the first element of the
    human trafficking offence is expressed in the first group of words  Did
    recruit, conceal, exercise control, direction or influence over movements of
    [the complainant].

[20]

He then said:

[T]hey are slightly different concepts but
    they should be read together as one on the evidence in this case. It has been suggested
    to you that you can read them individually and separately. Please do not do
    that. That is legally incorrect, you should read them together. Individually
    they may have very different meanings but they have to take their meaning from
    the context of all being put together. The individual meanings you have to take
    in account, but then come out with a total meaning that they all contribute to.

[21]

He defined those words for the jury as follows:

So, recruit means to enlist someone, to
    persuade them to get involved, like [an] army recruitment campaign, for
    example.

Conceal, means to hide or secret away;

Exercise control over movements of a person.
    Control refers to invasive behaviour, domination which leaves little choice to
    the person controlled;

Exercise direction over the movements of a
    person when rules or behaviors are imposed; and

The exercise of influence over the movements
    of a person is similar.

[22]

After defining the words, he instructed the jury:

So if you were going to look for a governing
    concept on the evidence in this case I would have thought it would be the
    requirement of exercise of control over movement. This sits at the centre of
    the provision. So that definition again is control refers to invasive
    behaviour, domination which leaves little choice to the person controlled. And
    remember it must be control over movement. That is the trafficking nature of
    the offence.

[23]

The trial judge next turned to the for the purpose
mens rea

requirement. He explained that
    it was not sufficient that any actions of the respondent had the effect of
    exploiting the complainant; rather, [i]t must be proved that exploitation was
    the intention and the purpose, ultimately.

[24]

At this point in the charge, the trial judge
    reviewed the definition of exploitation set out in s. 279.04(1) of the
Criminal
    Code
. He charged the jury that the [respondent] must cause
    [the complainant] to provide or offer to provide [labour or a service] If [the
    respondent] did not cause [the complainant] to provide [labour or a service]
    beyond a reasonable doubt, then proof of this count fails.

[25]

Turning to the words could reasonably be
    expected to cause the other person to believe that their safety or the safety
    of a person known to them would threatened in the definition of exploitation,
    he instructed the jury:

In a somewhat indirect way, the requirement is
    that the conduct of [the respondent] could reasonably be expected to cause a
    concern for safety in a reasonable person but not to actually have caused there
    to be fear in the complainant.

[26]

Focusing on the safety element in the
    definition of exploitation, he explained as follows:

In short, did [the respondent] cause there to
    be a reasonable expectation of fear for safety in [the complainant] if she did
    not provide sexual services? That is the question.

[27]

Before relating the evidence to the elements of
    the offence of human trafficking as he had explained them, the trial judge
    summarized his legal directions to the jury:

Was there an exercise of control over [the complainants]
    movements and was she exploited? Those are the questions.

That then, is the first count in terms of what
    must be proved. It is not easy stuff. Unfortunately, its quite convoluted. But
    to wrap it up in one sentence, the Crown must prove that [the respondent] was
    the motivating cause behind [the complainant] offering and providing sexual
    services and that it was reasonable to expect that [the complainants] safety
    would be threatened if she did not provide the services.

C.

Analysis

[28]

The trial judge made three errors in this
    portion of his charge.


i.

The conduct element is disjunctive

[29]

The trial judge committed the first error by
    instructing the jury to read all of the specified types of conduct  recruit,
    conceal, or exercise control, direction or influence over movement  as one,
    with a single common meaning. In other words, he adopted a conjunctive
    interpretation of the conduct requirement. This interpretation is contrary to accepted
    principles of statutory interpretation.

[30]

The modern principle of statutory interpretation
    is that the words of an Act are to be read in their entire context, in their
    grammatical and ordinary sense harmoniously with the scheme of the Act, the
    object of the Act, and the intention of Parliament: Ruth Sullivan,
Sullivan
    on the Construction of Statutes
, 6th ed. (Markham:
    LexisNexis, 2014), at
p. 7
,
    quoting Elmer A. Driedger,
The Construction of Statutes
(Toronto: Butterworths, 1974), at p. 67; see also
Rizzo
    & Rizzo Shoes Ltd.
(Re)
, [1998] 1 S.C.R. 27, at para. 21;
R. v. Hutchinson
, 2014 SCC 19, [2014] S.C.R. 346, at para. 16.

[31]

In addition to this modern principle of
    statutory interpretation, the presumption against tautology is relevant. That
    presumption of statutory interpretation instructs that the legislature avoids
    superfluous or meaningless words, that it does not pointlessly repeat itself or
    speak in vain:
Sullivan
, at
p. 211, citing
Attorney General of Quebec v. Carrières
    Ste-Thérèse Ltée
, [1985] 1 S.C.R. 831, at p. 838
. Instead, [e]very word in a statute is presumed to make sense and
    to have a specific role to play in advancing the legislative purpose:
Sullivan
, at
p. 211
.
    Thus, [e]very part of a provision or set of provisions should be given meaning
    if possible, and courts should avoid, as much as possible, adopting
    interpretations that would render any portion of a statute meaningless or
    pointless or redundant:
Hutchinson
,
    at para. 16;
Sullivan
, at
p. 211.

[32]

Subsection 279.01(1) captures [e]very 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
    (emphasis added).

[33]

On a plain reading of s. 279.01(1), it is clear from the use of
    the word or throughout the part of the provision describing the conduct caught
    by it that the
actus reus
is disjunctive  not, as the trial judge interpreted
    it, conjunctive. Thus, the conduct requirement is made out if the accused engaged
    in any one of the specific types of conduct set out in the first part of the
    provision 
i.e.

recruits, transports, transfers, receives,
    holds, conceals or harbours. It is also made out if the accuseds conduct
    satisfies one of the acts in the second part 
i.e.

exercises
    control, direction or influence over the movements of a person. For example,
    the
actus reus
would be made out if the accused recruited the complainant.
    It would also be made out if the accused exercised influence over the movements
    of the complainant.

[34]

There is nothing in the offence provision, the other
    provisions concerning human trafficking or the
Criminal Code

as a whole that indicates that the use of the word or in
    this provision should be given anything other than its ordinary and grammatical
    meaning 
i.e.

one requiring that the
    various conduct caught by the provision be read disjunctively rather than conjunctively.

[35]

Moreover, a disjunctive interpretation is consistent
    with the object of the human trafficking provisions, which is to criminalize
a wide range
of intentional conduct
    that has, as its purpose, the exploitation of vulnerable persons:
A.A.
, at para. 88 (emphasis added). A disjunctive reading of the various
    conduct caught by s.
279.01(1) supports the achievement of this object
    by capturing various and diverse types of offending conduct, including some
    which are preliminary or preparatory conduct, such as recruitment:
A.A.
,
    at para. 88. A conjunctive interpretation, melding the meanings of all of the
    different
conduct
into one single meaning capable of
    capturing only one single type of conduct, would hinder the objective of the
    provision.

[36]

A disjunctive interpretation also ensures that each one of the listed types
    of conduct in s. 279.01 has its own meaning. By contrast, the conjunctive
    interpretation employed by the trial judge contravenes the presumption against
    tautology because it renders Parliaments listing of various different
conduct
redundant.

[37]

In sum, a disjunctive interpretation of s.
    279.01(1) accords with the grammatical and ordinary sense of the words used in
    the provision as well as the object of the human trafficking provisions. It is
    also supported by the presumption against tautology.

[38]

The trial judges conjunctive interpretation is
    also contrary to existing jurisprudence.

[39]

For instance, the Court of Appeal of Quebec
    ascribed a disjunctive interpretation to the conduct requirement in s.
    279.01(1) in
R. c. Urizar
, 2013 QCCA 46,
    [2013] R.J.Q. 43, at para. 72:

Linfraction peut être commise de différentes
    façons.  Il peut sagir d'un geste isolé ou de gestes coordonnés pourvu
    que ces gestes soient posés en vue dexploiter ou de faciliter lexploitation
    de la personne.  Ainsi, celui qui recrute ou héberge pourra être accusé de
    la traite des personnes à la condition qu'il ait su que le geste posé l'avait
    été en vue dexploiter ou de faciliter lexploitation dune personne.
[2]


[40]

Similarly, in
A.A.
, at para. 80, this court endorsed a disjunctive interpretation of
    the conduct requirement in the offence of trafficking a person under 18, which
    is identical to the human trafficking offence except that it applies when the
    victim is under 18 years of age: The
conduct
requirement may be established
in several

different ways
including
    exercising control, direction or influence over the movements of another person
    (italics in original, underlining added).

[41]

The effect of the trial judges erroneous
    conjunctive interpretation was to elevate the conduct element of the offence
    beyond what the Crown was required to prove. As the Crown put it in its factum,
    [t]he Crown is not required to prove that the accused exercised near-total
    control over the complainant. For example, it would be sufficient to make out
    the
actus

reus
of the offence
    if the accused recruited the complainant. Recruiting a person within the
    meaning of the provision can happen with or without the exercise of control
    over the person. The jury was instructed incorrectly on this important point of
    law.


ii.

Influence is less coercive than direction

[42]

Second, the trial judge erred by directing the
    jury that [t]he exercise of influence over the movements of a person is
    similar to [e]xercise direction over the movements of a person, which he had
    defined as when rules or behaviors are imposed. He provided the jury with no
    other instruction regarding the meaning of exercising influence.

[43]

Like the error above, this instruction runs
    counter to accepted principles of statutory interpretation. It fails to accord
    with the ordinary meaning of these words, because the word direction
    ordinarily means something different than the word influence. It offends the
    presumption against tautology, because it renders Parliaments use of the word
    influence superfluous. Finally, it fails to accord with legislative intent, because
    it narrows the reach of the offence provision rather than supporting its
    application to a wide range of intentional conduct.

[44]

The trial judges interpretation of direction
    and influence is also inconsistent with existing jurisprudence.

[45]

I note that the trial judge appears to have
    adopted the definitions of control and direction in
Perreault c. R.
,
    [1997] R.J.Q. 4 (Q.C.C.A.), at p. 6, but not its definition of influence as
    something less coercive than direction:

Lélément
contrôle
réfère à un comportement envahissant, à une emprise laissant peu de
    choix à la personne contrôlée. Ce comportement inclut par conséquent des actes
    de direction et dinfluence. Il y a exercice de
direction
sur les mouvements dune personne lorsque des règles ou des
    comportements sont imposés. Lexercice de direction nexclut pas que la
    personne dirigée dispose de latitude ou dune marge dinitiative. Lexercice d
influence
inclut des comportements moins contraignants. Sera considérée comme
    une influence, toute action exercée sur une personne en vue daider, encourager
    ou forcer à sadonner à la prostitution. [Emphasis in original.]

[3]

[46]

I agree with the Court of Appeal of Quebec that
    exercises influence entails something
less
coercive than exercises direction, and I agree with the Crown that the trial
    judge erred by not communicating this to the jury. Less is different from
    similar.

[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.
[4]
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.

[48]

I also agree with the Court of Appeal of Quebecs
    comment in
Urizar
, at
    para. 74, that exercises control, direction or influence over the movements of
    a person generally suggests a situation that results from a series of acts
    rather than an isolated act:

Le second segment de larticle suggère un état
    des choses qui découle dune série dagissements plutôt que dun acte isolé:
    exerce un contrôle, une direction ou une influence sur les mouvements dune
    personne.
[5]

[49]

The Court of Appeal of Quebec continued, at
    para. 74:

Ces derniers termes évoquent la notion
    demprise, de mainmise, dascendant sur la personne et sur ses mouvements.
[6]

[50]

In my view, the essence of what the Court of
    Appeal of Quebec adds here is that all these residual terms  exercises
    control, direction or influence  evoke a scenario in which a person, by
    virtue of her or his relationship with the complainant, has some power 
    whether physical, psychological, moral or otherwise  over the complainant and his
    or her movements. As stated in
A Handbook for Criminal Justice
    Practitioners on Trafficking in Persons
, (Ottawa:
    Department of Justice, 2015), which was developed by the
    Federal/Provincial/Territorial Working Group on Trafficking in Persons, these
    residual terms characterize the nature of conduct in terms of the relationship
    between the accused and the victim in relation to the victims mobility: at p.
    20. In other words, by virtue of the relationship between the accused and the complainant,
    the accused was in a position or had the ability to control, direct, or
    influence the movements of the complainant. However, as already stated, the
    terms control, direct and influence involve different degrees of coercion:
    see
Urizar
, at para. 76 ([L]infraction peut
    être commise par des agissements qui,
à
degré
    variable
, forment une contrainte sur les mouvements
    dune personne en vue de lexploiter ou de faciliter son exploitation
[7]

[emphasis added]).

[51]

The jury ought to have been instructed on how
    exercising influence was different from exercising direction, and, especially,
    that it involved a lesser degree of coercion with respect to the complainants
    movements. The trial judge erred in not doing so, and further erred in
    essentially equating these two modes of committing this offence.

[52]

In my view, each of the two errors discussed above requires a new trial,
    because they might reasonably be thought, in the concrete reality of the case
    at hand, to have had a material bearing on the acquittal:
R. v. Graveline
,
    2006 SCC 16; [2006] 1 S.C.R. 609, at para. 14. In essence, these errors had the
    effect of requiring the Crown to prove more than the offence provision demanded
    for a finding of guilt.

iii.

Actual exploitation is not required

[53]

Since a retrial is required, guidance is appropriate. Therefore, it is
    prudent to point out an additional error even though it was not raised by the
    Crown and I am not relying upon it to resolve this appeal. That error relates
    to the exploitation issue. Specifically, although the trial judge correctly
    charged the jury that the Crown must prove what the respondent did was for the
    deliberate purpose of exploiting the complainant, and that [t]he focus is on
    the accuseds actions and what effect they might be anticipated to have as
    opposed to what effect they actually had on the alleged victim, he
    subsequently stated that the Crown was required to prove that the respondent
    actually exploited the complainant. Specifically, he instructed the jury: In
    short, did [the respondent]
cause
there to be a reasonable expectation of fear for safety
in [the complainant]
if she did not
    provide sexual services? That is the question (emphasis added). He also
    instructed the jury: Was there an exercise of control over [the complainants]
    movements and
was she exploited
? Those are
    the questions (emphasis added).

[54]

These latter instructions are incorrect, because a finding of actual
    exploitation is not an essential element of the offence. The Crown need only
    prove that the accused intentionally engaged in any of the conduct described in
    s. 279.01(1) with the
purpose
of exploiting the
    complainant or facilitating her or his exploitation:
A.A
.
, at paras. 84-86. No exploitation need
    actually occur or be facilitated by the accuseds conduct. The focus of this
    element is on the accuseds state of mind 
i.e.

his or her
    purpose in engaging in the prohibited conduct  and not on the actual
    consequences of his or her conduct for the complainant:
A.A.
, at para.
    86. As Watt J.A. observed in
A.A.
, at para.
    87, where exploitation, as defined in s. 279.04, arises from the facts,
    inferring that the accuseds purpose was to exploit the victim will usually be
    a relatively straightforward task.

[55]

In
Urizar
, the Court of Appeal of Quebec came to the same
    conclusion about the purpose element, stating, at para. 69:

Les actes mentionnés au premier alinéa de larticle 279.01
    C.cr. ne constituent des actes criminels que dans la mesure où ils sont poses
    en vue dexploiter ou de faciliter lexploitation de la personne,
peu importe quune exploitation réelle sensuive
.
    [Emphasis added.]
[8]

III.

PROCURING

A.

The elements of the offence

[56]

In 2014, Parliament enacted Bill C-36
,

An Act to amend the
    Criminal Code in response to the Supreme Court of Canada decision in Attorney
    General of Canada v. Bedford and to make consequential amendments to other Acts
,
    2nd Sess., 41st Parl., 2014 (assented to 6 November 2014), S.C. 2014, c. 25,  in
    response to the Supreme Courts decision in
Canada (Attorney General) v.
    Bedford
, 2013 SCC 72, [2013] 3 S.C.R. 1101, declaring three
Criminal
    Code
offences addressing prostitution-related conduct unconstitutional. I
    say more about Bill C-36 below, in relation to the offence in s. 286.4 of
    advertising sexual services for consideration. Bill C-36 also modernized and
    reformulated the prior procuring offence in s. 212(1), by enacting s. 286.3(1).

[57]

The new procuring offence set out in s. 286.3(1) reads as follows:

Everyone who procures a person to offer or provide sexual
    services for consideration or, for the purpose of facilitating an offence under
    subsection 286.1(1), 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, is guilty of an indictable
    offence and liable to imprisonment for a term of not more than 14 years.

[58]

Subsection 286.1(1) provides in relevant part:

Everyone who, in any place, obtains for consideration, or
    communicates with anyone for the purpose of obtaining for consideration, the
    sexual services of a person is guilty of [a hybrid offence].
[9]

[59]

As can be seen from the wording of s. 286.3(1), there are two modes of
    committing the
actus reus

of the procuring offence :

1.

The accused procures a person to offer or provide sexual services for
    consideration; or

2.

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.

[60]

The
actus reus
of the offence of
    procuring can be established by proof of conduct satisfying either of these modes.

[61]

Dealing with the first mode, procure means to
    cause, or to induce, or to have a persuasive effect upon the conduct that is
    alleged. This definition was adopted by the Supreme Court in
R. v. Deutsch
,
    [1986] 2 S.C.R. 2, at pp. 26-27, in considering the procuring offence then in
    effect. This court subsequently applied this definition to the former procuring
    offence in s. 212(1)(d):
R
.
v.
    Barrow
(2001)
, 54 O.R. (3d) 417 (C.A.), at para. 37, leave to appeal refused, [2001]
    S.C.C.A. No. 431;
R. v. Bennett
(2004)
,
    184 C.C.C. (3d) 290 (Ont. C.A.), at para. 53.
And lower courts have
    applied this definition from
Deutsch
to the new procuring offence:
Alexander
,
    at para. 51;
R. v. Evans
, 2017 ONSC 4028, at para. 137. I agree that
    this is the correct definition to use for the term procure in s. 286.3(1).

[62]

The second mode of committing the
actus reus
of procuring shares language with the human trafficking offence in s. 279.01(1).
With the exception of the words transports, transfers and receives,
    which are included in the human trafficking offence but not the procurement
    offence, Parliament used the same words and phrasing. As I will explain below,
    like the human trafficking offence, the second mode of the
actus reus
for the procuring offence is satisfied by proof that the accused committed any
    one of the specified types of conduct 
i.e.

recruits, holds,
    conceals, harbours, or exercises control, direction or influence over movement.

[63]

To prove
mens rea
for the first mode of the procuring offence,
    the Crown must prove that the accused intended to procure a person to offer or
    provide sexual services for consideration. To prove
mens rea

for
    the second mode, the Crown must prove that the accused intended to do anything
    that satisfies the
actus reus

for this mode in relation to a
    person who offers or provides sexual services for consideration, and that the
    accused acted with the purpose of facilitating an offence under s. 286.1(1)
    (the purchasing sexual services offence). More will be said about these
    elements below in the course of my analysis of the trial judges charge
    regarding this offence.

B.

The trial judges charge on procuring

[64]

The procuring charge was described on the indictment as follows:

Alicia GALLONE further stands charged:

2.       That she  did for the purpose of facilitating an
    offence under subsection 286.1(1) procure, recruits, holds, conceals or
    harbours [the complainant] a person who offers or provides sexual services for
    consideration, or exercises control, direction or influence over the movements
    of [the complainant], contrary to section 286.3(1) of the Criminal Code of
    Canada[.]

[65]

The trial judge charged the jury as follows with respect to this
    offence:

The procuring first part of this definition, procures,
    recruits, conceals or harbours, means to cause, induce or have persuasive
    effect. This requires the accuseds active encouragement and involvement in the
    prostitution of another.

The second way the offence can be proved is found in the second
    clause I referred to which is, exercise control, direction or influence over
    the movements of a person, for the purpose of facilitating prostitution. You
    will recognize this language from the human trafficking charge, count number
    one. The same definition applies here. Here it is again.

These words express slightly different concepts, but again,
    they must be read together as one. Recruit, means to enlist someone, to
    persuade them to get involved, like an army recruitment campaign. Conceal,
    means to hide or secret away. Exercise control over movements of a person;
    control refers to invasive behaviour, domination which leaves little choice to
    the person controlled. Exercise direction over the movement of a person, when
    rules or behaviours are imposed. The exercise of influence over the movements
    of a person is similar.

If you were going to look for a governing concept I would have
    thought it would be the requirement of exercise of control over movement.
    This sits at the centre of the provision. So that definition again is; control
    refers to invasive behaviour, domination which leaves little choice to the
    person controlled. And remember, it must be control over movement. That is the
    trafficking nature of the offence. The word trafficking used to be associated
    mainly with drugs. Trafficking in that context refers to movement.

So in summary, there are two modes of committing the offence in
    this count: one is the procuring mode which requires causing or inducing the
    prostitution; the other is the requirement of an element of control over the
    prostitute.

Lastly, you must find in order for the Crown to have proved its
    case that [the complainant] was a person who offers or provides sexual
    services for consideration.



So summing up on this count, the key issue here is whether [the
    complainant] chose prostitution on her own or whether she was pushed into it by
    [the respondent]. By which I mean, putting it in the legal language, whether
    there was procurement or control.

C.

Analysis

[66]

The trial judge made the same two errors in his charge on procuring as
    he did in his charge on human trafficking.

[67]

First, he instructed the jury to treat all of the different and distinct
    types of conduct captured by the second mode of the
actus reus

for
    the procuring offence (
recruiting,
    holding, concealing, or harbouring a person, or exercising control, direction
    or influence over the movements
of a person) as one  namely,
    that the accused must have had an element of control over the movements of the
    complainant. He defined control restrictively as invasive behaviour,
    domination which leaves little choice to the person controlled.

[68]

As noted above, with the exception of the words transports,
    transfers and receives, Parliament used the same words and phrasing to
    describe the second mode of the
actus reus

for procuring under
    s. 286.3(1) as it did to describe the
actus reus

for the
    offence of trafficking in persons under s. 279.01(1).

[69]

As with the human trafficking offence, a disjunctive interpretation of
    the words used to describe the second mode of the
actus reus

for
    procuring accords with the grammatical and ordinary sense of the words used in
    the provision, particularly with the use of the word or, and with the
    presumption against tautology.

[70]

It also accords with legislative intent. The preamble to Bill C-36
    indicates that one of Parliaments objectives in enacting these new offences
    was to continue to denounce and prohibit the procurement of persons for the
    purpose of prostitution. While in the circumstances little weight needs to be
    placed on other indicators of legislative intent, the extrinsic evidence of
    Parliamentary intent that is available is persuasive, offering more
    particularity. Specifically, the Technical Paper produced by the Department of
    Justice on the new prostitution-related offences, which was tabled before the
    parliamentary committees tasked with reviewing the proposed new offence
    provisions, notes that [c]onsistent with [this objective], Bill C-36 prohibits
comprehensively all conduct related to procuring others
    for the purpose of prostitution
:
Technical
Paper  Bill
    C-36
, at p. 8 (emphasis added). A broad interpretation that reads the
    prohibited conduct disjunctively rather than conjunctively supports this
    legislative intent.

[71]

Thus, I conclude that the different types of prohibited
conduct
set out in the second mode of s. 286.3(1) should be
    read disjunctively, and the trial judge erred in instructing the jury
    otherwise.

[72]

Second, as he did in relation to the offence of human trafficking, the
    trial judge erred by failing to provide the jury with any instruction regarding
    the meaning of exercising influence except to say that [t]he exercise of
    influence over the movements of a person is similar to [e]xercise direction
    over the movements of a person, which he had defined as when rules or
    behaviors are imposed. As explained above, conflating influence with
    direction runs counter to the ordinary meaning of these words and the
    presumption against tautology. It also fails to accord with legislative intent,
    because it narrows the reach of the offence provision and renders it less comprehensive.

[73]

As they did in relation to the offence of human trafficking, each of these
    two errors in the trial judges instruction on procuring require a new trial,
    because they might reasonably be thought, in the concrete reality of the case
    at hand, to have had a material bearing on the acquittal:
Graveline
,
    at para. 14. In essence, these errors had the effect of requiring the Crown to
    prove more than the offence provision demanded for a finding of guilt.

[74]

Before leaving this section of my analysis, I wish to briefly address one
    other issue with the charge on procuring identified by the Crown. I will also
    address an issue with respect to the wording of the indictment.

[75]

First, the Crown argues that, although the trial judge correctly defined
    procure as cause, induce or have persuasive effect, in summing up on this
    count, he erred by essentially equating procure with being pushed into
    prostitution. In the context of the charge as a whole, I am not persuaded that
    this attempt to summarize the concept of procure in simpler language was an
    error that might reasonably be thought, in the concrete reality of the case at
    hand, to have had a material bearing on the acquittal, particularly when the
    trial judge provided the jury with the correct definition earlier in his
    charge. However, it is preferable to use the explanation of procure from
Deutsch

rather than search for other ways of explaining this concept.

[76]

Next, I note that the wording of this count in the indictment
    essentially merged the first mode of committing the
actus reus
of the
    offence into the second by putting the term procure next to recruits, holds,
    conceals or harbours, and the trial judge repeated this wording in his charge.
    In future, it would be preferable if the first mode were kept distinct from the
    second, particularly because, as set out above, they contain different
    elements. For example, the first mode does not require that the procured person
    be a person who offers or provides sexual services for consideration. However, as
    the trial judge commented, in this case, this particular element was not really
    in dispute.

IV.

ADVERTISING SEXUAL SERVICES

A.

The elements of the offence

[77]

When Parliament enacted s. 286.4 in 2014, pursuant to Bill C-36, it
    created an entirely new offence prohibiting the advertising of an offer to
    provide sexual services for consideration. Section 286.4 provides:

Everyone who knowingly advertises an offer to provide sexual
    services for consideration is guilty of [a hybrid offence].
[10]


[78]

The
actus reus

of this offence is made out if the
    accused advertised an offer to provide sexual services for consideration. The
mens
    rea
is made out if: (i) the accused intended to advertise the offer; and
    (ii) the accused knew that the offer was one to provide sexual services for
    consideration.

[79]

At the same time, Parliament provided immunity, under s. 286.5, to a
    person from prosecution under s. 286.4 in respect of the advertisement of his
    or her own services:

286.5 (1) No person shall be prosecuted for

(a) an offence under section 286.2 if the
    benefit is derived from the provision of their own sexual services; or

(b) an offence under section 286.4 in relation
    to the advertisement of their own sexual services.

(2)
No person shall be prosecuted
for aiding, abetting, conspiring or attempting to commit an offence
    under any of sections 286.1 to 286.4 or being an accessory after the fact or
    counselling a person to be a party to such an offence,
if the offence
    relates to the offering or provision of their own sexual services
.

B.

The trial judges charge on advertising sexual services

[80]

With respect to the advertising offence, the respondent was charged as
    follows:

Alicia GALLONE further stands charged:

3.       That she  did for the purpose of facilitating an
    offence under subsection 286.1(1) knowingly advertise an offer to provide
    sexual services for consideration, contrary to section 286.4 of the Criminal
    Code of Canada.

[81]

The trial judge directed the jury as follows:

It is vital to recognize under this count that Section 286.5 of
    the
Criminal Code
, which you do not have, declares that no person can
    be prosecuted for this offence if they are advertising their own sexual
    services.

So this count deals with the two Backpage ads, obviously. Were
    those, to a significant extent, put together and posted by [the complainant] or
    was [the respondent] the prime mover? [The complainant] said she was forced
    essentially to produce these. [The respondent] testified to the contrary, that
    she helped by lending her phone camera to the photographer and helped [the complainant]
    pick what she wore in the pictures, but this was all at the request of [the
    complainant].

The key question here for you again will be who was the prime
    mover in deciding to produce and then publish the ad? Advertising sexual
    service is a crime unless you are advertising your own sexual services. The
Criminal
    Code
, like in the procuring section, makes the seller exempt from
    prosecution.

So if [the complainant] wanted to advertise her own sexual
    services and [the respondent] merely helped in the way she testified in her
    evidence, there is no crime. That goes for anyone who helped realize [the
    complainants] intention. Those advertising their services are entitled to have
    people to help them do that without the helpers becoming criminal accomplices.
    Otherwise, the photographer, the typesetter, the person supplying the clothing,
    anyone advising on any technical aspect and the Backpage company itself would
    all be criminalized.

If on the other hand you are convinced beyond a reasonable
    doubt that it was [the respondent] who was behind the posting of the ad and it
    was her doing more or less, unilaterally, and it was not [the complainants]
    choice, then [the respondent] is guilty of this offence.

C.

The parties positions

[82]

The Crown argues that that the trial judge erred in law by directing the
    jury that the immunity provision in s. 286.5 extends to anyone who knowingly
    assists a seller in advertising his or her own sexual services. The Crown
    submits that the immunity provision only applies to sellers of their own sexual
    services.

[83]

In response, the respondent argues that the trial judge correctly
    directed the jury that the immunity provision in s. 286.5 extends to anyone who
    knowingly assists a seller in advertising his or her own sexual services. She
    submits that if the seller can lawfully advertise his or her own sexual
    services, then assisting the seller to do something lawful cannot amount to an
    offence. Moreover, she argues, as the trial judge recognized in his charge, the
    Crowns interpretation would criminalize a very broad range of conduct in
    circumstances where there may be no exploitation whatsoever of the seller by
    the person assisting with advertising the sellers sexual services.

D.

Analysis

[84]

I agree with the respondent that the Crowns interpretation of ss. 286.4
    and 286.5 criminalizes a very broad range of conduct in circumstances where
    there may be no exploitative relationship between the seller and the person
    assisting him or her with advertising. However, the respondent did not
    challenge the constitutionality of the prohibition on advertising.

[85]

In my view, as a matter of statutory interpretation, the Crowns
    interpretation of the reach of the immunity provision in s. 286.5 vis-à-vis the
    offence of advertising in s. 286.4, as currently drafted, is correct.

[86]

First, considering the grammatical and ordinary sense of the words used
    in s. 286.5 to describe the reach of the immunity provision in relation to the
    offence set out in s. 286.4, it is clear that immunity only extends to those
    persons who are involved in advertising their own sexual services. In relevant part,
    s. 286.5(1) provides:

No person shall be prosecuted for  (b) an offence under
    section 286.4 in relation to the advertisement of
their
    own sexual services
. [Emphasis added.]

[87]

Subsection 286.5(2) provides:

No person shall be prosecuted for aiding, abetting, conspiring
    or attempting to commit an offence under any of sections 286.1 to 286.4 or
    being an accessory after the fact or counselling a person to be a party to such
    an offence, if the offence relates to the offering or provision of
their own sexual services
. [Emphasis added.]

[88]

There is no ambiguity in the wording employed here. Immunity applies to:
    (i) those who knowingly advertise
their own sexual
    services
; and (ii) those who aid or abet the advertising of
their own sexual services
, conspire or attempt to
    conspire to advertise
their own sexual services
,
    act as an accessory after the fact to the advertisement of
their own sexual services
, and counsel a person to be a
    party to the advertisement of
their own sexual services
.

[89]

There is no suggestion in the wording that immunity also extends to
    those who are involved in advertising
the sexual services
    of others
.

[90]

The restriction of immunity from prosecution for advertising sexual
    services only to those involved in advertising their own sexual services also
    accords with legislative intent.

[91]

Given the clarity of s. 286.5, little weight needs to be placed on other
    indicators of legislative intent. Nevertheless, the available extrinsic evidence
    of Parliamentary intent is both clear and reliable. This evidence confirms what
    is evident from the content of the legislation, namely, that, as stated in
Technical
    Paper
, at p. 3, the new prostitution offences enacted by Parliament
    represent a fundamental shift from the previous view of prostitution as a
    nuisance toward the conceptualization of prostitution as a form of sexual
    exploitation. This shift is reflected in the language used in the preamble to
    Bill C-36, which refers to the exploitation that is inherent in prostitution.
    It is also reflected in Parliaments choice to place the new prostitution
    offences in Part VIII of the
Criminal Code
, Offences against the
    Person. Previously, the prostitution-related offences were in Part VII,
    Disorderly Houses, Gaming and Betting:
Technical Paper
, at p. 3.

[92]

As stated in the aforementioned Department of Justice Technical
    Paper that was tabled before the parliamentary committees that reviewed the new
    offence provisions, the overall objective of the new offences is to reduce the
    demand for prostitution with a view to discouraging entry into it, deterring
    participation in it and ultimately abolishing it to the greatest extent
    possible:
Technical Paper
, at p. 3.
The prohibition
    on advertising in s. 286.4 is central to Bill C-36s objective of reducing the
    demand for sexual services. At the second reading debate on Bill C-36,
then
    Minister of Justice and Attorney General of Canada, the Honourable Peter
    MacKay,
stated that Bill C-36 proposes two entirely new offences:
    purchasing sexual services and advertising the sale of sexual services. He
    explained that both are aimed at the goal of reducing the demand for
    prostitution:

The purchasing offence targets the demand for
    prostitution, thereby making prostitution an illegal activity, and to
    complement this offence, the advertising offence targets the promotion of this
    exploitative activity,
thereby
    furthering the legislations overall objective of reducing the demand for
    sexual services
:
House of Commons
    Debates
,
41st Parl., 2nd
    Sess., No. 101 (11 June 2014), at p. 6653 (Hon. Peter MacKay).  [Emphasis added.]

[93]

However, in line with this conceptualization of prostitution as exploitation
    rather than nuisance, the new legislative scheme treats those who sell their
    own sexual services as victims who need support and assistance, rather than
    blame and punishment:
Technical Paper
, at p. 9. The immunity
    provision in s. 286.5, as it applies to the prohibition on advertising in s.
    286.4, supports this objective by shielding those who sell their own sexual
    services from prosecution should they advertise their own services (whether as
    a principal, party, conspirator, etc.).

[94]

As its language makes clear, the immunity provision does not legalize
    the advertising of ones own sexual services. It simply exempts those who do
    advertise their own sexual services from prosecution. The advertising is still
    unlawful.
As Donald Piragoff, Senior Assistant Deputy
    Minister, Policy Sector, Department of Justice, stated during questioning
    before the Standing Senate Committee on Legal and Constitutional Affairs on
    September 11, 2014 regarding the meaning of the immunity provision generally:

If you look at the language used in the
    section [
i.e.
s. 286.5] it says no person shall be prosecuted. It
    doesnt say no person commits an offence or no person is criminally liable. It
    says no person shall be prosecuted in the following circumstances. Its an
    immunity from prosecution. That doesnt mean that the person is not involved in
    illegal activity.
Proceedings of the Standing Senate Committee on
    Legal and Constitutional Affairs
, 41-2, No. 15 (11
    September 2014) at p. 15:36 (Hon. Donald Piragoff).

[95]

Additionally, the liability of persons who assist sellers with
    advertising their own sexual services was the subject of specific comment in
    the parliamentary debates. For instance, Ms. Emily Symons (Chair, Prostitutes
    of Ottawa-Gatineau Work Educate & Resist) noted on July 8, 2014 that the
    law would criminalize sex workers advertising their friends:
House of
    Commons Standing Committee on Justice and Human Rights
, 41st Parl., 2nd
    Sess., No. 35 (8 July 2014), at p. 4. Mr. Josh Paterson (Executive Director,
    British Columbia Civil Liberties Association) raised the same issue on July 9,
    2014, stating that it could make criminals out of any sex workers who work
    collectively and advertise collectively, because they would then be
    participating in advertising someone elses services, not just their own:
House
    of Commons Standing Committee on Justice and Human Rights
, 41st Parl., 2nd
    Sess., No. 40 (9 July 2014), at p. 8. And, on November 4, 2014, in the debates
    before the Senate, the Hon. George Baker noted that in addition to the person
    who advertises the sexual services, [t]he person who promotes or assists in
    providing those services will be prosecuted:
Senate Debates
,
41st
    Parl., 2nd Sess., No. 92 (4 November 2014), at p. 2379.

[96]

Further, Bill C-36 also enacted ss. 286.2(1) and (2), which criminalize
    receiving a financial or other material benefit, knowing that it was obtained
    by or derived from prostitution. In enacting Bill C-36, Parliament carefully
    crafted exceptions to the offences in ss. 286.2(1) and (2) to ensure that criminal
    liability would not result where there was not an exploitative relationship.
    For example, s. 286.2(4) provides that ss. 286.2(1) and (2) do not apply to a
    person who receives a benefit in certain circumstances, including:

(c) in consideration for a service or good that they offer, on
    the same terms and conditions, to the general public; or

(d) in consideration for a service or good that they do not
    offer to the general public but that they offered or provided to the person
    from whose sexual services the benefit is derived, if they did not counsel or
    encourage that person to provide sexual services and the benefit is
    proportionate to the value of the service or good.
[11]

These exceptions have not been extended to the
    advertising offences. During the House Committee hearings, there was some
    suggestion that these exceptions might also apply to the advertising offence:
    see
e.g.
House of Commons Standing Committee on Justice and Human Rights
,
    41st Parl., 2nd Sess., No. 33 (7 July 2014), at p. 18 (Hon. Bob Dechert); No.
    37 (8 July 2014), at p. 12 (Hon. Robert Goguen) and p. 16 (Hon. Bob Dechert).

[97]

To clarify any confusion, the Minister of Justice testified before the
    Standing Senate Committee on Legal and Constitutional Affairs on September 11,
    2014 as follows:

To clarify the scope of this offence, because there has been
    some confusion in this regard, a person who advertises the sexual services of
    other persons would commit the offence and the person who knowingly assists
    other persons in advertising sexual services for sale would be a party to the
    offence.

However, the person who advertises their own sexual services
    could not be prosecuted for this offence because Bill C-36 treats the person as
    a victim of sexual exploitation. So the new law will target those who purchase
    the bodies and the lives of other human beings. This approach is consistent
    with the bills objective of reducing the demand for prostitution while
    treating those subjected to it as victims who need assistance, not punishment:
Standing
    Senate Committee on Legal and Constitutional Affairs
, 41st Parl., 2nd
    Sess., No. 15 (11 September 2014), at p. 15:14
(Hon. Peter
    MacKay)
.

[98]

The fact that Parliament could have, but did not, craft any internal
    exceptions to the advertising offence like those it inserted into the material
    benefit offences supports the view that Parliament intended to treat the
    prohibition on advertising, which furthers the bills objective of reducing the
    demand for sexual services, differently from the provision of other goods and
    services, such that it would capture those who assist sellers in advertising
    their sexual services even if there were no exploitative relationship between
    them.

[99]

In sum, as a matter of statutory interpretation, I am of the view that
    the immunity provision applies only to those who advertise their own sexual
    services and not to those who assist them. This interpretation accords with the
    grammatical and ordinary sense of the wording used in the immunity provision as
    well as legislative intent. The trial judge erred in instructing the jury
    otherwise on this point.

[100]

This error
might reasonably be thought, in the concrete reality of the case at
    hand, to
have had a material bearing on the acquittal because it
    foreclosed the jury from considering an alternative route to liability that was
    available on the evidence.


V.

DISPOSITION

[101]

I agree with the Crown that the trial judges erroneous instructions
    might reasonably be thought, in the concrete reality of the case at hand, to
    have had a material bearing on the respondents acquittals. They foreclosed the
    jury from considering some of the most obvious routes to liability
by
    imposing the requirement for near-total control over the complainants
    movements on the human trafficking and procurement offences and improperly
    extended immunity for the advertising offence to the respondent.

[102]

Accordingly, I would allow the appeal and order a new trial.

Released: AH AUG 20 2019

Alexandra Hoy
    A.C.J.O.

I agree C.W. Hourigan
    J.A.
I agree D.M. Paciocco J.A.





[1]

The parties agreed that this word was surplusage, and the
    trial judge instructed the jury to disregard it.



[2]
Unofficial English Translation (Q.C.C.A.):

An offence may be committed in
    different ways. It may be an isolated act or it may be coordinated acts, as
    long as the act or acts are committed for the purpose of exploiting a person or
    facilitating their exploitation. Thus, someone who recruits or harbours may be
    charged with trafficking in persons if they knew that the act was committed for
    the purpose of exploiting a person or facilitating their exploitation.



[3]
Unofficial English Translation (Q.C.C.A.), as quoted in
Urizar,
at para.
    75:

The element of control refers
    to invasive conduct, a power that leaves the controlled person with little
    choice. This conduct therefore includes acts of direction and influence.
    Direction is exercised over the movements of a person when rules or behaviours
    are imposed. The exercise of direction does not preclude the possibility that
    the directed person has latitude or a measure of discretion. The exercise of
    influence includes less constraining conduct. Any action exercised over a
    person for the purpose of aiding, abetting or compelling that person to engage
    in prostitution would be considered an influence.



[4]

Bryan A. Garner, ed.,
Blacks Law Dictionary
, 11th ed. (Toronto: Thompson Reuters, 2019),
sub verbo
influence.



[5]
Unofficial English Translation (Q.C.C.A.):

The second
    part of the section suggests a situation that results from a series of acts
    rather than an isolated act: exercises control, direction or influence over the
    movements of a person.



[6]
Unofficial English Translation (Q.C.C.A.):

These
    latter terms evoke power, control, or dominance over the person and their
    movements.



[7]
Unofficial English Translation (Q.C.C.A.):  [T]he offence may be committed by
    actions which serve,
to varying degrees
, to limit
    the movements of a person for the purpose of exploiting them or facilitating
    their exploitation (emphasis added).



[8]
Unofficial English Translation (Q.C.C.A.):  The acts mentioned in the first
    paragraph of section 279.01
Cr. C.
constitute criminal offences only if
    they are committed for the purpose of exploiting or facilitating the
    exploitation of a person,
regardless of whether or not
    exploitation actually ensues
 (emphasis added).



[9]
Penalty provisions omitted.



[10]

Penalty provisions omitted.



[11]

Section 286.4(5) then provides that s. 286.4(4) does not apply
    in various circumstances that involve exploitative relationships.


