The court overturned the man’s acquittal and ordered a new trial in a split decision
A man’s history of regular violence and threats against his common-law partner is relevant to charges that he trafficked her, the Supreme Court of Canada ruled in a 7-2 decision on Friday, overturning the man’s acquittal and ordering a new trial.
Contrary to a trial judge’s assessment, the SCC majority found that testimonies by the complainant’s friends and family members about her ex-partner’s pattern of violent behaviour do not count as past discreditable conduct evidence – i.e., evidence that is generally inadmissible and that relates to a defendant’s misconduct beyond what is alleged in an indictment.
The trial judge’s mischaracterization of the testimonies “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” of the Criminal Code, Justice Michelle O'Bonsawin wrote for the majority.
“I am satisfied, to a reasonable degree of certainty, that the verdicts of acquittal would not necessarily have been the same had this error not occurred.”
Justices Suzanne Côté and Malcolm Rowe dissented, writing that while they agreed the trial judge mischaracterized the testimonies, this error “did not have a material bearing on the acquittals.” The dissenting justices said they would have dismissed the appeal.
The case involved the accused, T.J.F., and J.D., the complainant, who were in a common law relationship between 2004 and 2012. According to the SCC, the couple’s relationship was “marked by violence, evictions, and financial difficulties,” with the couple moving between Nova Scotia, Saskatchewan, and Alberta.
T.J.F. first suggested that the couple have sex on a webcam for money while they were in Saskatchewan. J.D. did not want to engage but agreed to avoid violence by T.J.F.
The complainant also alleged that T.J.F. persuaded her to dance for men and offer sexual services for money. She said he posted ads offering her sexual services and controlled all her earnings until she left the relationship in 2012.
T.J.F. was charged with trafficking and receiving a material benefit from the activity.
At trial, five witnesses – J.D.’s friends, brother, mother, and daughter – testified about T.J.F.’s violence towards her but did not provide any direct evidence of sexual services. The trial judge acquitted T.J.F. While he admitted the evidence, reasoning that it helped him understand the context in which the alleged trafficking occurred, he also characterized it as past discreditable conduct evidence that was not directly related to the indictment.
The judge said that while he believed the couple was in a violent relationship, J.D.’s testimony lacked credibility, and T.J.F. did not likely have any ties to a prostitution enterprise.
A majority of the Court of Appeal for Nova Scotia upheld the acquittal. The appellate court found that the trial judge incorrectly found that T.J.F.’s violence qualified as past discreditable conduct but ultimately concluded that the mistake did not impact the acquittal ruling. A dissenting judge disagreed, arguing that a new trial was warranted.
The SCC majority agreed that a new trial was necessary. O'Bonsawin wrote that the witnesses’ evidence of T.J.F.’s violence towards J.D. is relevant to the indictment and cannot be classified as past discreditable conduct evidence.
The trial judge’s mischaracterization of the witnesses’ testimonies was based on his finding that they established T.J.F. was violent towards J.D. but failed to provide direct evidence that he was involved in sex trafficking. However, O'Bonsawin said, “evidence can be direct or circumstantial, and both types of evidence can satisfy a judge beyond reasonable doubt that a fact in issue is true.”
The justice wrote that regular violence against a person “can amount to exercising control, direction, or influence over their movements during a period of time.”
She added that violence is also relevant to exploitation because it can compel “the victim to provide (or offer to provide) labour or a service, and could be reasonably expected to cause the victim to believe that their safety (or the safety of a person known to them) would be threatened if they failed to provide that labour or service.”
By finding that T.J.F.’s history of violence was irrelevant to his indictment, the trial judge committed an error of law, the high court continued, reasoning that this history “could also have been found to be a contributing cause of the complainant’s provision of sexual services.”
In their dissent, Côté and Rowe argued that the trial judge’s mistake did actually affect his acquittal ruling.
“In our view, what is critical is that the five witnesses’ testimony was found to be admissible by the trial judge, despite his mischaracterization,” the justices said. “And – crucially – the testimony that the trial judge accepted as credible did not address whether the respondent exercised control over the complainant for the purpose of exploiting her.”
In a statement to Canadian Lawyer on Friday, Mark Scott, who represented the Public Prosecution Service of Nova Scotia, said, “These cases are difficult to prosecute, particularly in the context of intimate partner relationships.
“The clarity of the decision – especially discussing exploitation amid a violent relationship – provides important guidance in this respect,” Scott said. “This case is also important because acquittals arising from mistakes as to the relevance of evidence of abuse can have the effect of making already vulnerable complainants even more reluctant to come forward.”
Counsel for T.J.F. did not respond to a request for comment. 
