R. v. T.J.F., 2024 SCC 38, NOVEMBER 15, 2024.

FACTS: The accused was charged with the offences of trafficking in persons and receiving a material benefit from it, contrary to sections 279.01(1) and 279.02(1) of the Criminal Code.  At the trial, the complainant testified that she engaged in certain sexual activities requested by the accused out of fear, based upon prior acts of violence against her by the accused.  The accused was acquitted.  A majority of the Nova Scotia Court of Appeal upheld the acquittals.  The Crown appealed as of right to the Supreme Court of Canada.

HELD: The appeal was allowed and a new trial ordered.  The Supreme Court held that the “trial judge assessed the evidence based on a wrong legal principle by determining that the evidence of violence and threats of violence by the accused towards the complainant was evidence of past discreditable conduct, leading to a misapprehension of the evidence. This error of law hindered his overall assessment of the evidence and considerably diminished the evidentiary foundation relevant to the essential elements of the trafficking in persons offence and the definition of exploitation set out in s. 279.04 Cr. C.” (at paragraph 4).

Section 279.01(1):

Section 279.01(1) states 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… 

The Supreme Court indicated that “nothing in the text of the provision bars the Crown from establishing the actus reus through evidence of violence and threats of violence by an accused towards a victim and, more generally, a violent relationship between the two, if the effect of that violence is such that the victim’s movements have been controlled, directed, or influenced…Such conduct can amount to exercising control, direction, or influence over their movements during a period of time, provided that the effect of that violence is that the victim’s movements have been effectively controlled, directed, or influenced during that time” (at paragraphs 68 and 70).

The Supreme Court stated that the trial judge’s “characterization of regular violence and threats of violence by the accused against the complainant as past discreditable conduct also suggests that he concluded that this type of conduct could not meet the definition of exploitation set out in s. 279.04 Cr. C.” (at paragraph 96).

The Supreme Court concluded that conclude that the trial judge “committed an error of law when he held that the evidence of regular violence and threats of violence by the accused against the complainant provided by the other witnesses was evidence of past discreditable conduct. To the contrary, this evidence could have been relevant to the essential elements of the offence and could have formed the basis of a finding that the accused controlled, directed, or influenced the movements of the complainant during the time period specified in the indictment. It could also have been found to be a contributing cause of the complainant’s provision of sexual services” (at paragraph 109).