R. v. T.J.F.: When does evidence of violence give rise to an inference of exploitation?

In many jurisdictions, the state has no right of appeal against the acquittal of an accused at trial. This is not so in Canada, where the Attorney General may appeal an acquittal on questions of law. In R. v. T.J.F, 2024 SCC 38 [“T.J.F.”], the Supreme Court of Canada allowed a Crown appeal of an acquittal by effectively reframing credibility findings as errors of law. Consequently, the accused’s acquittals were set aside and a new trial ordered.

Facts

The accused, T.J.F., and the complainant, J.D., were in a long-term common law relationship marked by violence, evictions, financial difficulties, and multiple relocations across provinces. While living in Fort Saskatchewan, Alberta, the accused and the complainant began engaging in sexual services for compensation – first by jointly having sex on webcam, and later by the complainant’s provision of sexual services (T.J.F., para 1).

The accused was charged with trafficking in persons and receiving a material benefit from it, contrary to ss. 279.01(1) and 279.02(1) of the Criminal Code, RSC 1985, c C-46. After a six-day trial at which the accused elected not to testify, T.J.F was acquitted of both charges. 

At trial, the complainant testified that her relationship with the accused was marked by violence, and physical abuse, and sexual exploitation of her by the accused (paras 9-14). The Crown called five other witnesses (the “other witnesses”): the complainant’s brother, mother, and daughter, and two friends (T.J.F., para 15). These witnesses collectively provided evidence of the accused’s violence towards the complainant. They did not, however, provide evidence of the provision of sexual services (T.J.F., para 15-20).

Judicial History

Supreme Court of Nova Scotia, 2021 NSSC 290

The trial judge acquitted the accused, reasoning that while there was evidence to suggest that the accused was part of a “prostitution business,” there was insufficient evidence to establish proof beyond a reasonable doubt (para 22). This conclusion rested heavily on the trial judge’s finding that the complainant’s testimony lacked credibility and that the evidence of the five other witnesses established only the accused’s history of violent behaviour. Their evidence did not directly address the requirement under the trafficking provision that the violence or control must be “for the purpose of exploiting them or facilitating their exploitation.” The complainant was the only witness to provide evidence of exploitation.

Notably, the trial judge characterised some of the other witnesses’ testimony as evidence of the accused’s past discreditable conduct, rather than as conduct covered by the indictment. While past discreditable conduct is presumptively inadmissible under the bad character evidence exclusionary rule, the trial judge admitted the evidence because it “assist[ed] the Court in understanding the relationship between the parties and the context in which the alleged abuse occurred” (T.J.F., para 25).

Nova Scotia Court of Appeal, 2023 NSCA 28

The Crown appealed the acquittals, arguing that the trial judge committed three errors of law – namely i) that the trial judge assessed the evidence based on an incorrect legal principle, ii) that the trial judge failed to consider all relevant evidence, and iii) that the trial judge erred with respect to the legal effect of factual findings that he made (T.J.F, para 27).

The majority dismissed the appeal and upheld the acquittals. They held that the trial judge assessed the evidence of the other witnesses according to an incorrect legal principle by ruling that the accused’s threats, intimidation and violence were past discreditable conduct (rather than going to the actus reus of the offence of trafficking). However, they concluded that this error had no material bearing on the acquittals since the trial judge still had a reasonable doubt as to an essential element of the offence – whether the accused exploited the complainant or benefited from any alleged exploitation – to which the other witnesses provided no evidence going directly to this element (T.J.F., para 30).   

The dissenting judge would have allowed the appeal on the grounds that the mischaracterised evidence was relevant to establishing exploitation – the actus reus and mens rea of both offences (T.J.F., para 35).

The Attorney General appealed as of right to the Supreme Court (T.J.F., para 38).

Issues

1. Did the trial judge fail to consider all the evidence?
2. Did the trial judge misapprehend the evidence?
3. If legal errors were made, could they have had a material bearing on the acquittals?

Decision

The majority decision – written by O’Bonsawin J – held that the trial judge misapprehended some of the evidence and that this legal error might have had a material bearing on the acquittals – meeting the requirements for a Crown appeal. As such, the acquittals were set aside and a new trial ordered. Côté and Rowe JJ, dissenting, agreed with the majority that the trial judge made a legal error in characterizing the evidence of the other witnesses as evidence of past discreditable conduct; however, they determined that this mischaracterization established no basis to set aside the trial judge’s credibility findings. Therefore, in the dissent’s estimation, the Crown had not shown that the legal error might have had a material bearing on the acquittal.

The majority and dissent agree that the trial judge considered all the evidence, and they agree that he made a legal error in characterizing the other witnesses’ evidence of the accused’s violence towards the complainant as evidence of past discreditable conduct rather than as conduct covered by the indictment. The disagreement comes down to what effect this error had on the ultimate decision.

To prove the offence of trafficking in persons under s. 279.01 of the Criminal Code, the Crown must establish that the accused “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). Crucially, the offence of trafficking requires that the accused not only exercise violence and control, but the Crown must prove beyond a reasonable doubt that the violence or control was done for the purpose of exploitation.

The complainant was the only witness who testified directly to exploitation. The problem for the Crown’s case was that the trial judge made a finding that the complainant’s evidence was not credible, a finding that is owed deference on appeal. While the other witnesses testified to the accused’s violent and controlling behaviour, they did not testify that this violence was for the purpose of exploitation.

For the dissent, the trial judge’s error in mischaracterising the other witnesses’ evidence as evidence of past discreditable conduct could not have materially bore on the acquittal. Even if it had been correctly admitted as going to the actus reus of trafficking, this evidence of violence was insufficient to demonstrate that the violence was for the purpose of trafficking. As such, it was incapable of corroborating the complainant’s evidence as to exploitation.

How, then, did the other witnesses’ evidence of the accused’s violence corroborate the complainant’s evidence of exploitation for the majority?

“From the moment,” O’Bonsawin J writes, “the trial judge considered the regular violence and threats of violence by the accused towards the complainant as past discreditable conduct, his analysis of the evidence was tainted regarding both the actus reus and the mens rea. This characterization, in and of itself, indicates that the trial judge dismissed the Crown’s theory of the case as implicating impermissible propensity reasoning when it did not. The fact that he nevertheless admitted the evidence cannot cure this misapprehension” (emphasis added, T.J.F., para 112).

In other words, the trial judge’s mischaracterisation tainted his entire analysis, revealing that the trial rejected the Crown’s theory of the case as propensity reasoning.

Why is that so? What is the link between “regular violence” and exploitation such that to mischaracterize the other witnesses’ evidence taints the entire analysis?

O’Bonsawin J arrives at this conclusion through an exercise in statutory interpretation that conflates evidence of violence or threats of violence with exploitation as such. Once evidence of “regular violence” can support the inference of exploitation, then the trial judge’s “assessment of the other witnesses’ evidence [of regular violence] undermined his assessment of the complainant’s evidence [of exploitation] as it failed to appreciate the interconnectedness between both” (T.J.F., para 117).

It is precisely this “interconnectedness” that is the linchpin of O’Bonsawin’s conclusion that the trial judge’s error has a material bearing on his credibility assessment. That is, despite the fact that the other witnesses provided no evidence of exploitation – what one witness described as “nothing out of the ordinary” (T.J.F., para 19) – their evidence of “regular violence” can substantiate the complainant’s evidence of exploitation because “regular violence and threats of violence…can be the means of perpetuating [trafficking]” (T.J.F., para 62).

O’Bonsawin J arrives at this conclusion through a creative statutory interpretation analysis of the elements of the offence of trafficking. O’Bonsawin concludes that Parliament’s objective to broaden the range of conduct captured by the offence of trafficking means “criminalizing a wide range of conduct carried out with the purpose of exploiting or facilitating the exploitation of one or many victims” (T.J.F, para 62). Later, she explains that “it follows that nothing in the text of the provision bars the Crown from establishing the actus reus though evidence 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” (T.J.F., para 68).

In other words, because violence can be the means of exploitation, evidence of violence can ground an inference of exploitation, or as Côté and Rowe JJ put it, “evidence of violence will necessarily give rise to an inference of intent to exploit” (T.J.F., para 157).

Analysis

It is difficult to read this decision as anything but watering down the mens rea requirement of the offence of trafficking. The effect of O’Bonsawin’s reasons is that intent to exploit can be inferred where there is evidence of violence in the relationship. This is a dangerous conclusion that carries significant consequences for accused who are entitled to the presumption of innocence and the principle that the Crown must prove all elements of the offence beyond a reasonable doubt.

In this case, the complainant was found to be not credible. Yet, the evidence of the other witnesses that the accused had a pattern of violence towards the complainant, according to O’Bonsawin’s analysis is sufficient to corroborate the complainant’s evidence of exploitation. This logic employs the legal error of mischaracterization to set aside a trial judge’s factual findings on credibility that formed the basis for his reasonable doubt and acquittal.

Canada is something of an outlier in granting Crown appeals from acquittals: the United Kingdom imposes significant restrictions on the scope of Crown appeals and many jurisdictions do not allow them at all (R. v. Hodgson, 2024 SCC 25, para 25). The Supreme Court’s decision in R v Graveline, 2006 SCC 16 set the bar for Crown acquittals high – query whether high enough – and “[the] Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law” (T.J.F., para 14). Yet, O’Bonsawin’s analysis effectively provides for the presumption that violence may carry the intent to exploit. Such logic can render any scenario where violence is present a hypothetical scenario of exploitation. This case raises concerns that the majority’s logic has materially lowered the Graveline threshold – at least with respect to the offence of trafficking – and established a concerning evidentiary logic whereby violence implies an intent to exploit.

This article was edited by Patrick Weston.