R. v. Nicolaou

2008 BCCA 300 R. v. Nicolaou

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Nicolaou, 2008 BCCA 300 Date: 20080716 Docket: CA034910 Between: Regina Respondent And Nicolaos Nicolaou Appellant BAN ON DISCLOSURE: AN ORDER HAS BEEN MADE IN THIS CASE PURSUANT TO SECTIONS 486(3) AND 486(4.1), [Now S. 486.4], AND 486.4(2) OF THE CRIMINAL CODE Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Chiasson J.R. Ray Counsel for the Appellant M.T. Ainslie Counsel for the Respondent Place and Date of Hearing: Vancouver, British Columbia 1 April 2008 Place and Date of Judgment: Vancouver, British Columbia 16 July 2008 Written Reasons by: The Honourable Mr. Justice Chiasson Concurring Reasons in the result by: The Honourable Madam Justice Saunders (p. 28, para.

94) Concurred in by: The Honourable Madam Justice Kirkpatrick Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] The appellant was charged with eight counts on a nine count indictment: Count 1 Nicolaos NICOLAOU, at or near Burnaby, in the Province of British Columbia, between the 1st day of September, 2005 and the 24th day of November, 2005, he did in committing an assault upon [the complainant], use a weapon, to wit: a knife, contrary to Section 267(a) of the Criminal Code. Count 2 Nicolaos NICOLAOU, at or near Burnaby, in the Province of British Columbia, between the 1st day of September, 2005 and the 24th day of November, 2005, he did commit assault of another person, [the complainant], contrary to Section 266 of the Criminal Code. Count 3 Nicolaos NICOLAOU, at or near Burnaby, in the Province of British Columbia, between the 1st day of September, 2005 and the 24th day of November, 2005, he did unlawfully live wholly or in part on the avails of prostitution of [the complainant], contrary to Section 212(1)(j) of the Criminal Code. Count 4 Nicolaos NICOLAOU, at or near Burnaby, in the Province of British Columbia, between the 1st day of September, 2005 and the 24th day of November, 2005, for the purposes of gain, he did exercise control, direction or influence over the movements of a person, [the complainant], in such a manner as to show that he was

aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally, contrary to Section 212(1)(h) of the Criminal Code. Count 5 Nicolaos NICOLAOU, at or near Burnaby, in the Province of British Columbia, between the 1st day of September, 2005 and the 24th day of November, 2005, he did commit extortion of [the complainant], contrary to Section 346(1.1)(b) of the Criminal Code. Count 6 Nicolaos NICOLAOU, at or near Burnaby, in the Province of British Columbia, between the 1st day of September, 2005 and the 24th day of November, 2005, he did sexually assault [the complainant], contrary to Section 271 of the Criminal Code. Count 7 Gregory Shane FUSON, at or near Burnaby, in the Province of British Columbia, on or near the 24th day of November, 2005, he did in committing an assault upon [the complainant], use a weapon, to wit: an axe, contrary to Section 267(a) of the Criminal Code. Count 8 Nicolaos NICOLAOU, at or near Burnaby, in the Province of British Columbia, on or about the 24th day of November, 2005, he did commit assault of another person, [the complainant], contrary to Section 266 of the Criminal Code. Count 9 Gregory Shane FUSON and Nicolaos NICOLAOU, at or near Burnaby, in the Province of British Columbia, on or about the 24th day of November, 2005, they did commit extortion of [the complainant], contrary to Section 346(1.1)(b) of the Criminal Code. [2] The appellant was found guilty on counts one through six. Convictions were entered, with the exception of count three, which was conditionally stayed, pursuant to R. v. Kienapple, [1975] 1 S.C.R.

729. His co-accused was acquitted. He appeals his "convictions" on counts three to six.[1] [3] For the reasons that follow, I would dismiss the appeal on counts five and six, allow the appeal on count four and order a new trial on counts three and four. Background [4] The background to the charges was set out by the trial judge in paras. 11 - 23 of his oral reasons for judgment (indexed as R. v. Fuson and Nicolaou, 2007 BCSC 944). [5] The complainant testified. She is a drug addict and prostitute with an extensive criminal record. She lived in the right half of a duplex. The left half was a "drug house". The appellant was an occasional visitor to the drug house, but in approximately September 2005, he and Mr. Fuson took over the premises and the drug operation therein. [6] The complainant testified that she was physically abused and "taxed" by the appellant. Monetary levies were imposed on her for perceived offences such as purchasing drugs from persons other than the appellant, allegedly taking goods and other matters. She testified the levies were paid from her earnings as a prostitute or from stealing and pick-pocketing. Ultimately the amount owing reached $3,000 and the appellant told her to pay it off at $300 per night. She said the appellant told her she had to work on the street and perform sexual favours for his friends because she owed him money. The complainant stated

she paid money to the appellant because she believed if she were not to do so, he would hurt her. [7] The incident that gave rise to count six, sexual assault, occurred when the appellant accused the complainant of stealing some of his drugs. She stated he spat on her and beat her. The appellant then ordered another woman to search the complainant's vagina. The search was done against the complainant's wishes. No drugs were found. [8] An acquaintance of the complainant, called "P.B." by the trial judge, who also was a drug addict and prostitute, testified concerning events at the house. She confirmed some of the violence and the payment of money by the complainant to the appellant, but did not confirm payment was for other than drugs. [9] The appellant testified. Generally, he denied everything other than selling drugs to the complainant. The judge discussed the appellant's evidence in paras. 36 - 40. [10] The appellant admitted he kicked the complainant and grabbed her hair, but stated this was done because he was angry with the complainant or was in response to acts of theft. [11] It was the appellant's testimony that he did not use the word "tax" and that the complainant owed him money for drugs. He said that when he told her to get money, it was to pay for drugs and denied telling her to "work the streets". [12] The appellant admitted he gave instructions for the vaginal

search because he believed the complainant had stolen his drugs. The trial judgment [13] The trial judge reviewed the evidence and the submissions of Crown and the defence on each count. He then addressed them in order. [14] The judge began in para. 79 with a consideration of R. v. W.(D.), [1991] 1 S.C.R. 742, and its guidance for reviewing the evidence when an accused testifies; in para. 80 the judge noted he had to be cautious considering the evidence of the complainant. [15] In para. 81 he stated he found the complainant's "manner and her evidence to be reliable and consistent with evidence of other witnesses, and in a logical convergence with other evidence and events". In paras. 82 - 85, he noted similarities between her evidence and that of the appellant. [16] Turning in para. 85 to count one, assault with a knife, the judge reviewed the appellant's evidence and found it "internally conflicting". The judge concluded the appellant lied and accepted the evidence of the complainant "without any reservation". He was "not left with any doubt by any other evidence". [17] Concerning count two, assault, the judge noted in para. 87 there was "an abundance of evidence to justify" the appellant's admission of guilt. [18] At trial, the Crown and defence agreed counts three and four alleged the same delict and the judge should direct a conditional stay of one of them if there were a

conviction (R. v. Kienapple). [19] The judge had this to say in para. 90 concerning count three, living on the avails of prostitution, which often is mis-described as living "off" the avails of prostitution: In any event, I find that he was living off the avails of prostitution when he sold her drugs and knowingly received money from her efforts as a prostitute. The sale of drugs to her allowed him to buy his necessaries of life and to purchase more drugs, which in turn he sold to others. Mr. Nicolaou was running a business funded in part by the proceeds of the complainant's prostitution. There is no doubt in my mind whatsoever that Mr. Nicolaou was living off the avails of the complainant's prostitution. [20] The judge referred to ss. 212(1)(h) and 212(3) of the Criminal Code, R.S.C. 1985, c. C-46, and stated the sections created a presumption that the appellant "was living off the avails". The judge held that the appellant knew the complainant was a prostitute; he spent four to six hours a day at the residence, during which time he controlled or directed the complainant's movements for the purpose of compelling her to engage in prostitution. The judge concluded the appellant "was habitually in the company of a prostitute". He found the appellant guilty of counts three and four and directed a conditional stay on count three (paras. 91 - 92). [21] Count five alleged extortion.

The complainant asserted the appellant imposed "taxes" on her and thereby extracted most of her earnings by threats and acts of violence. In para. 93 the judge referred to the evidence of the complainant, her acquaintance and the appellant, and stated: Although [the acquaintance] did not herself experience any tax, and [Mr. Nicolaou] denied imposing taxes, I do not accept his evidence and I do accept that evidence of the complainant that she was taxed for various offences; that is, that money was to be paid to [Mr. Nicolaou] as a result of his threats and violence for real or imaginary offences. [22] Referring to count five in para. 94, the judge distinguished between the appellant's conduct, which he concluded compelled the complainant to engage in prostitution, an offence under s. 212 of the Criminal Code, and his threats that forced her to perform sexual acts on and for his friends, which the judge stated was an aspect distinct from the elements that constituted an offence under s.

212. He concluded: The [appellant] created an atmosphere of such menace in the residence that the complainant was forced, against her will, to do what the [appellant ] told her to do, and if she did not she would be punished physically and emotionally. [23] Concerning count six, relying on R. v. Chase, [1987] 2 S.C.R. 293, the judge stated a motive of sexual gratification was not required and, on the basis of R. v. Armbruster, 1999 BCCA 448, 138 C.C.C. (3d) 64, 126 B.C.A.C. 283, assault for the purpose of power and control can support a conviction. In para. 95 he rejected the appellant's contention the assault was done in private and concluded in para 96: The evidence here clearly shows that [the appellant] was demonstrating his power and control over not only the complainant but other women present. I find him guilty of the sexual assault set out in Count 6. [24] Although the two accused were acquitted on counts seven, eight and nine, the reasons given for these acquittals factor into an argument advanced on this appeal. The judge had this to say in para. 100: Although it is probable that at some point in time there may have been an incident similar to that described by the complainant, I am left with a doubt as to when it happened or if it involved [the co-accused]. Given that doubt, and given the certainty of her description of who was involved and what happened, I am then

left with a doubt concerning the evidence supporting all three charges arising out of the incident at Georgie's house and I must find that the Crown has not proved beyond a reasonable doubt that [Mr. Nicolaou] was guilty of either assault on or near the 24th of November, or that he and [the co-accused] committed extortion of the complainant, or that [the co-accused] assaulted the complainant with an axe as charged in Count 7. Positions of the parties [25] In his factum, the appellant states the issues on appeal are: Did the learned Trial Judge err in law in finding that the acts of the Appellant in abetting a forced examination of the Complainant's vagina for the purposes of determining the presence of secreted narcotics amounted to a sexual assault under Section 271 of the Criminal Code? Did the learned Trial Judge err in law in convicting the Appellant of living off the avails of prostitution when a finding of fact was made the Appellant received money from the Complainant in exchange for narcotics? The Appellant submits the learned Trial Judge misapprehended the evidence of [the acquaintance] in relation to Counts 3, 4 and 5. The Appellant submits the learned Trial Judge arrived at unreasonable verdicts in relation to Counts 3, 4 and 5 in that he failed to resolve manifest inconsistencies between the Complainant's testimony and other evidence, particularly in relation to

Counts 4 and 5 (exercising control and extortion), thus rendering it impossible to determine his route to conviction and reasons for accepting the Complainant's testimony. [26] The Crown's position is the converse of the appellant's. [27] The appellant seeks to quash his convictions on counts three and four, although a conditional stay was entered on count three. He seeks acquittal or a new trial on count five, extortion, an order quashing his conviction on count six of sexual assault and substitution therefore of a conviction for assault simpliciter. I shall address the issues in the order presented by the appellant. Count six - sexual assault [28] The appellant contends the judge erred because there "was no sexual or carnal aspect whatsoever to the force employed". He contends the trial judge implicitly, and incorrectly, focused on the anatomy involved in the assault. He says, "[t]here is nothing in Chase or in the Criminal Code definition of assault that suggests a sexual assault can simply involve the exercise of control and domination over another". In my view, the appellant's position is an oversimplification. [29] Assault is defined in the Criminal Code. [30] In Chase, the Supreme Court of Canada stated at p. 302 that a sexual assault occurs when a victim is assaulted "in circumstances of a sexual nature, such that the sexual integrity of the victim is violated"(emphasis

added). The court emphasized that there is no detailed and all-inclusive definition of sexual assault and noted: The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. [31] There are a number of additional cases relevant to this issue. In my view, they support the following analytical framework in a case such as this: · a motive of sexual gratification is not essential; · the anatomy involved is relevant; · the exercise of power and control over the victim and his or her humiliation or subservience can engage his or her sexual integrity. [32] In Chase, the Supreme Court referred with approval to comments of Lambert J.A. in R. v. Cook (1985), 20 C.C.C. (3d) 18 at 38, 46 C.R. (3d) 129 (B.C.C.A.), that "a real affront to sexual integrity and sexual dignity may be sufficient" to constitute sexual assault. [33] In R. v. V.(K.B.), [1993] 2 S.C.R. 857 at 859, after quoting from McIntyre J. in Chase, the Supreme Court of Canada affirmed the decision of the Ontario Court of Appeal ((1992), 71 C.C.C. (3d) 65, 8 O.R. (3d) 20 (cited to C.C.C.)): In the case at bar, the trial judge referred, as did Osborne J.A. for the majority in the Ontario Court of Appeal, generally to the

above comments of McIntyre J. in convicting the appellant. Among other things, the appellant, on three occasions, violently clutched the little boy's scrotum and there was evidence of bruising and severe pain. In my view, it was clearly open to the trial judge to conclude from all the circumstances that the assault was one of a sexual nature and that the assault was such that the sexual integrity of the appellant's son was violated. [34] The Crown asserts this case illustrates the significance of domination and control in determining whether there has been a sexual assault. The appellant contends the case has limited application because the assault occurred when the father, in a misguided disciplinary response, squeezed his son's genitals to discourage him from doing so to others. [35] The Supreme Court of Canada was not concerned with the details of the father's motive, that is, whether it was sexual. In my view, neither was the Ontario Court of Appeal. At p. 70 Osborne J.A. stated, "[a] sexual assault does not require sexuality and, indeed, may not even involve sexuality. It is an act of power, aggression and control". He continued, "Parliament has criminalized sexual assault because it represents an unacceptable intrusion upon, or violation of, the victim's sexual privacy or integrity". He also stated, "the appellant's misguided and primitive disciplinary exercise was an

aggressive act of domination which violated the sexual integrity of his son and constituted an assault which can properly be viewed as a sexual assault". [36] In R. v. Bernier, [1998] 1 S.C.R. 975, the Supreme Court of Canada affirmed the decision of the Quebec Court of Appeal ((1997), 119 C.C.C. (3d) 467), stating simply, "the appellant must be convicted based on the evidence in this case". [37] In Bernier, the accused, who was a nurse's aide in a home that housed people with psychiatric problems touched a patient's genitals, pinched another patient's breasts and touched other patients' breasts and testicles. He did not seek sexual gratification and apparently did these things because he thought it was funny. [38] The Court of Appeal had this to say at p. 475: As the evidence of the aggressor's desire for sexual gratification is not an essential element of the offence, to require proof of sexual motivation has the effect of transforming the offence of sexual assault into a specific intent offence. Whether the aggressor's motivation is a desire for sexual pleasure, a desire to inflict suffering on another person, to humiliate or to ridicule the victim, does not at all change the criminal nature of his conduct. Referring to the fact the accused touched the sexual organs of patients, the court stated, at p. 476, "a reasonable person is able to perceive the sexual context of the

touching". [39] In summary, the case is consistent with the conclusion that the involvement of sexual organs supports the sexual nature of an assault and a desire to dominate, humiliate, ridicule or exercise power over a victim can establish violation of the sexual integrity of the victim. [40] Although not directly on point, further support for the latter proposition is found in R. v. Armbruster, 1999 BCCA 448. The accused in that case had attempted to sexually assault a store clerk during a robbery. He did so not seeking sexual gratification, but because he was angry with her for having looked in disgust at him. Madam Justice Ryan noted in para. 66: "[t]he trial judge categorized the circumstances of the sexual assault with a weapon as a 'worst case' because it was designed to degrade and humiliate. I would defer to the findings of the trial judge". [41] The case was a sentencing appeal and the assault clearly was sexual, but in the absence of a motive of sexual gratification, the object of degrading and humiliating the victim was an element of the offence. [42] In the present case, the judge concluded in para. 95 the vaginal search was not done in private, he accepted it occurred as described by the complainant and her acquaintance and concluded in para. 96 the appellant "was demonstrating his power and control over not only the complainant but the other women present".

There was ample evidence to support these conclusions. [43] The appellant submits the judge ignored his motive for assaulting the complainant - his belief that the complainant stole his drugs and his attempt to recover them - but the judge did not do so. In para. 38 he recounted in detail the appellant's stated reason for the search; in para. 48 he noted the appellant's contention the search was done in private in a bathroom; in para. 57 he recited the appellant's contention the assault was not sexual. [44] In my view, the judge did not "focus solely on the anatomical location of the application of force" as the appellant asserts. The fact the assault was to the complainant's vagina made it an assault of a sexual nature, but the judge did not convict the appellant solely for that reason. He concluded the motive for the assault included demonstrating the appellant's power and control of the complainant. It is clear on the evidence she was humiliated, begged for the search to stop and allowed it to happen only out of fear of the appellant. [45] I would not accede to this ground of appeal. Count three - living on the avails and count four - control, direction or influence [46] Although the judge directed a conditional stay of count three with the concurrence of the Crown and defence, I consider it was error for him to do so. [47] Count three alleged an offence against s. 212(1)(j)

of the Criminal Code: Every one who (j) lives wholly or in part on the avails of prostitution of another person, [48] Count four was based on s. 212(1)(h): Every one who (h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally, [49] Although there is some intertwining of the facts, the delict for each count differs. One can aid, abet or compel another to engage in prostitution without living on the avails of prostitution and vice versa. The offence in (h) requires proof that a purpose was gain, whether or not gain is realized; the offence in (j) requires proof of a parasitic relationship. A commonality is prostitution, but the offences target different evils (see: R. v. Rose (1997), 100 O.A.C. 67). [50] In R. v. K.R.B., 2004 ABCA 307, 357 A.R. 137, at para. 7, the Alberta Court of Appeal addressed distinctions between the offences of living on the avails of prostitution and aiding, abetting or compelling a person to engage in prostitution: We do not accede to the proposition that the failure of the jury to reach a verdict is a proper foundation for the contention that the jury rendered inconsistent verdicts. That said, a review of the elements of the offences set out in Counts 2 and 3

makes clear that there are, as the Crown contends, important differences between them. Section 212(1)(h) of the Criminal Code requires, inter alia, that the Crown establish that the Appellant acted for the purpose of gain. Of significance, is that nothing need actually have been received by him or, if received, was nothing more than a sharing of expenses for mutual benefit. In contrast, s. [2]12(1)(j) of the Criminal Code requires inter alia, that the Appellant be found to have lived wholly or in part on the proceeds of prostitution. That is, the Crown must establish that the Appellant was in actual receipt of the proceeds to support his living. In addition, the Crown must prove that if the Appellant was living with the prostitute, the living arrangement was other than a normal and legitimate one involving a sharing of expenses for mutual benefit, but rather one in which he was living parasitically. [51] Although the judge dealt with the counts in the indictment in sequence, his consideration of counts three and four appears to be somewhat conflated. In my opinion, this led to reversible error. [52] He began his consideration of count three in para. 89 by referring specifically to s. 212(1)(j) and concluded in the last sentence of para. 90 that he had no doubt the appellant "was living off the avails of the complainant's prostitution". He then turned in para. 91 to s.

212(1)(h), and in that paragraph tracked the language of the subsection: "controlling or directing the complainant's movements for the purpose of compelling her to engage in prostitution so that he would gain". [53] In para. 89 the judge dealt with s. 212(1)(j), count three, and, after rejecting the appellant's contention he took money from the complainant only to pay for drugs and finding the appellant told the complainant to go out and work, the judge stated, "[c]learly [Mr. Nicolaou] was exercising control and direction over the activities of the complainant and at times brutally so". The latter observation is relevant to s. 212(1)(h), count four, and not to count three. [54] The judge convicted the appellant on count four, aiding, abetting and or compelling someone to engage in prostitution. This appears to have been based, at least in part, on the appellant having not rebutted the presumption derived from ss. 212(1)(h) and 212(3) of the Criminal Code that the appellant "was living off the avails" (para. 91). [55] Section 212(3) sets out the presumption: "[e]vidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1)". On its face, it does not apply

to s. 212(1)(h). [56] Although s. 212(1)(h) requires proof of a purpose to gain, there is no direct link between the presumption in s. 212(3) and the offence of aiding, abetting and compelling. This Court made it clear in R. v. Bramwell (1993), 86 C.C.C. (3d) 418 at 433-434, 37 B.C.A.C. 293, that living on the avails of prostitution requires an element of parasitism. That is not required for a conviction under s. 212(1)(h). [57] Having concluded the appellant did not rebut the s. 212(3) presumption, the judge could have concluded he was guilty of count three, but it does not appear that this was the basis for his conclusion on count three. The presumption was not relevant to count four. [58] I address count three. [59] In para. 89 the judge stated concerning count three, "there is clear evidence, which I do accept, from both the complainant and [the acquaintance] that he [the appellant] told the complainant to go out and work or perform sexual acts for his friends". It is conceded by the Crown that the judge misapprehended the evidence of the acquaintance on the latter point: she did not confirm the complainant's testimony concerning the appellant's friends. [60] In addition, the evidence arguably was not relevant to count three. The complainant testified the appellant insisted she not charge his friends for sexual favours. Standing alone, the provision of sexual favours

without charge is not prostitution. [61] I do not agree with the judge's conclusion in para. 90 that the appellant was guilty of living on the avails of prostitution because he was "running a business [selling drugs] funded in part by the proceeds of the complainant's prostitution". If this were the law, any supplier of goods to a prostitute would be living on the avails of prostitution. In the context of supplying goods or services, there must be some nexus between the supply and the prostitution. This was made clear in Shaw v. D.P.P., [1962] A.C. 220 at 263 (H.L.), as quoted by this Court in R. v. Celebrity Enterprises Ltd. et al. (1977), 41 C.C.C. (2d) 540 at 547, [1978] 2 W.W.R. 562 (B.C.C.A.), and R. v. Bramwell, at p. 432: What, then, is meant by living in whole or in part on the earnings of prostitution? It was not contended by the Crown that these words in their context bear the very wide meaning which might possibly be ascribed to them. The subsection does not cover every person whose livelihood depends in whole or in part upon payment to him by prostitutes for services rendered or goods supplied, clear though it may be that payment is made out of the earnings of prostitution. The grocer who supplies groceries, the doctor or lawyer who renders professional service, to a prostitute do not commit an offence under the Act. It is not to be supposed that it is its policy to

deny to her the necessities or even the luxuries of life if she can pay for them. [62] The appellant contends he was not living on the avails of prostitution, but merely was receiving payment for drugs from the complainant. He relies on this Court's decision in R. v. Celebrity Enterprises, noting the Court adopted the English House of Lords' definition "for living off the avails of prostitution". The appellant fairly summarized the criteria for conviction as: The case of R. v. Celebrity Enterprises (1977) 41 C.C.C. (2d) 540 is instructive. In that case this Court adopted the English House of Lords definition for living off the avails of prostitution. This included the following: 1) Receiving in whole or in part the earnings of a prostitute; 2) Living parasitically off the prostitute; 3) The words "living off the avails" must be narrowly construed. [63] In para. 93, the judge found as a fact that money was to be paid by the complainant to the appellant as a result of his threats and violence and in para. 94 that this resulted in the complainant being "forced to go out and prostitute herself". There was evidence to support this conclusion. The complainant testified: Q Did you pay any money to [the appellant] as a result of this taxing? A Yeah. Q Can you describe how much you paid and how frequently? A Well, I paid all the money that I got from - like I was like stealing,

pick-pocketing, working the street. Q By working the street you mean prostitution? A Yeah. Q Do you recall approximately how much of the money that you were -- that you got working the street went to [the appellant] as a result of the thousand dollar tax? A Pretty much all of it. When I would come in I would give him the money and sometimes he would give me some drugs and sometimes he wouldn't. Q Do you recall how long -- sorry, you paid off the whole thousand dollars? A I didn't -- I got -- it ended up getting I got taxed again and -- umm, for because I bought drugs at a different dealer's house so I got taxed again, and then I got taxed because I said [A's] name in front of his wife, who was his girlfriend, and I got -- like I just kept getting taxed and it got up to be $3,000 and then he's like "you've got to make $300 for ten nights". [64] The difficulty is the judge appears to have based his conclusion the appellant was living on the avails of prostitution not only on the evidence the complainant was forced to work on the street, but on his misapprehension of the evidence of the acquaintance and his view that selling drugs to her constituted living on the avails. In my view, it cannot be said that the judge would have reached the same conclusion of guilt had he not misapprehended the evidence of the acquaintance and not erred concerning the provision of drugs to the

complainant. [65] I shall deal with count four as did the appellant in the context of his contention the judge misapprehended the evidence concerning counts four and five. [66] The appellant addresses this issue in three parts: he contends the judge misapprehended the evidence of the acquaintance, which was part of the corroboration of the complainant's evidence; he asserts the judge "failed to establish a 'pathway for conviction'"; he submits it is unclear on what basis the judge concluded the appellant extorted the complainant for gain. [67] As noted, the trial judge was aware he had to approach the complainant's evidence with caution (para. 80) and he did so. The appellant asserts the complainant's evidence of taxing was crucial and it was not corroborated by the acquaintance. [68] Reference is made to the judge's statement in para. 93: Although [the acquaintance] did not herself experience any tax, and [Mr. Nicolaou] denied imposing taxes, I do not accept his evidence and I do accept that evidence of the complainant that she was taxed for various offences.; that is, that money was to be paid to [Mr. Nicolaou] as a result of his threats and violence for real or imaginary offences. [69] The appellant states the "taxing" issue was crucial to counts four and five and that it is clear the judge misapprehended the evidence of the acquaintance. In this context, he contends the

judge's concerns with respect to the testimony of the complainant presumably were overcome by the corroborative testimony of the acquaintance, but the acquaintance did not corroborate the complainant on this point. [70] The appellant refers to the testimony of the acquaintance, wherein she stated the complainant owed money to the appellant only for drugs, as supporting his contention the judge misapprehended her testimony. The judge was aware of this testimony. He stated: [54] As for her evidence that she was "taxed" by [Mr. Nicolaou], his counsel points to the evidence of [the acquaintance] who did not testify of any taxations, rather, counsel submits that the money was owed for drugs. [72] Although [the acquaintance] was still actively using drugs and frequently out of the house, her evidence did corroborate that of the complainant, even though she was not able to testify reliably about general events when she may well not have been present, as, for example, that all of the money that the complainant owed or paid to [Mr. Nicolaou] was for drugs. [71] In reaching the conclusion that the complainant was taxed by the appellant, the judge relied on her testimony, which he found credible, and the evidence of the appellant "that he was the enforcer at the residence". The judge stated in para. 74, "[h]is admission that he was the enforcer was also consistent with the complainant's

evidence that she was taxed and forced out onto the street to work as a prostitute in order to pay off the taxes". [72] The evidence supports the judge's conclusion, but it is not clear the extent to which he relied on the presumption arising from s. 212(3) in convicting the appellant on count four. In my view, it cannot be said that he necessarily would have convicted in the absence of reliance on the presumption. Count five - extortion [73] The appellant also complains that the acquaintance did not corroborate the complainant's evidence the appellant forced her to provide sexual services for his friends. The judge said in para. 89, "there is clear evidence, which I do accept, from both the complainant and [the acquaintance] that he told the complainant to go out and work or perform sexual acts for his friends". [74] The judge referred to the acquaintance's evidence concerning the provision of sexual favours to friends in his consideration of count three. [75] In the context of count five, the judge did not refer to the acquaintance in his consideration of the allegation the appellant obliged the complainant to perform sexual favours for his friends. He referred to the complainant's evidence of taxing and noted the acquaintance "did not herself experience any tax" (para. 93). In my view, taking the evidence as a whole, as he was required to do, the judge was entitled to reach

the conclusion expressed by him in para. 94 that the appellant "created an atmosphere of such menace in the residence that the complainant was forced, against her will, to do what [the appellant] told her to do" (para. 94). The judge held that part of that was providing sexual services for his friends and that this "aspect of the offence is distinct from the elements constituting the offence under s. 212" (para. 94). [76] While the judge may have misapprehended the evidence of the acquaintance concerning the forced provision of sex to the appellant's friends in his consideration of count three, in my view, this was not of consequence in his consideration of count five. The judge did not misapprehend the evidence of the acquaintance concerning the taxing of the complainant. [77] I would not accede to the appellant's contention the judge misapprehended the evidence in the context of counts four and five. No "pathway to conviction" - counts three, four and five [78] The appellant contends the judge erred by failing to identify the basis for accepting the testimony of the complainant with respect to counts three, four and five when he rejected her testimony concerning counts seven, eight and nine. [79] Counts seven, eight and nine concern an alleged assault on and extortion of money from the complainant by the appellant and Mr. Fuson. [80] There was an admission of facts that a

shooting occurred around 7:00 a.m. on November 23, 2005, and Mr. Fuson was arrested around noon that day. The complainant testified, "the events happened when it was misty or dark or in the evening, but definitely after 4:00 p.m. [ ]." The judge explained, "[the complainant] testified she remembered the date because there was a shooting at the residence 'that night'" (para. 99). [81] The judge concluded in para. 100: Although it is probable that at some point there may have been an incident similar to that described by the complainant, I am left with a doubt as to when it happened or if it involved Mr. Fuson. [82] It is clear a trier of fact may accept some, all or none of a witness's testimony. Concerning this incident, the judge accepted some elements of the complainant's testimony, but was concerned with her testimony concerning when the incident happened because Mr. Fuson could not have been involved if it were to have happened when she said it did. The judge was entitled to do so. [83] The fact that he did so was not inconsistent with his acceptance of the complainant's evidence concerning other counts. In my view, reasons for acquittal on counts seven, eight and nine were clear and left no confusion concerning his pathway to conviction on the other counts. [84] The appellant also asserts the judge failed to identify the pathway to conviction concerning count five. The

appellant asks, "what exactly was extorted from the complainant"? He asserts the Crown appears to have based its case on monetary gain to the appellant, but the judge referred to the appellant's insistence the complainant provide sexual favours for his friends. He says if the conviction were based on the latter "there was no gain experienced by the Appellant and the conviction cannot stand". [85] The appellant provides no authority to support the latter proposition. [86] Section 346(1) of the Criminal Code states: Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done. [87] The Supreme Court of Canada in R. v. Davis, [1999] 3 S.C.R. 759 at para. 43, made it clear that the word "anything" is to be given a wide interpretation in the context of extortion: the meaning of "anything" in the immediate context of "to extort or gain anything" and inducing any person "to do anything or cause anything to be done" is clearly in keeping with the wide, unrestricted dictionary definition, and includes sexual favours. [88] On a plain reading of the section, I see nothing that requires an accused directly to gain, but,

in any event, it is a reasonable inference that the appellant "gained" indirectly by the provision of sexual favours to his friends. [89] In my view, there is no confusion concerning the judge's basis for convicting the appellant on count five: he found the appellant extorted the complainant by forcing her to commit acts of prostitution for his monetary gain and by forcing her to provide sexual services to his friends. The former supported conviction under s. 212 as well as under s. 346; the latter supported conviction under s. 346 only. [90] I am satisfied that the judge's pathway to conviction on counts three, four and five was clear. Conclusion [91] The judge erred in his consideration of counts three and four. In my view it cannot be said that, in the absence of such errors, the result would necessarily have been the same (s. 686(1)(b)(iii) of the Criminal Code). The conviction on count four and the finding of guilt on count three cannot be sustained. [92] As was stated by Wood J.A. in R. v. Tom (1992), 79 C.C.C (3d) 84 at 94, 18 C.R. (4th) 203 (B.C.C.A.), ordinarily where an unrecorded verdict is shown to be flawed by reversible error, it is appropriate to order a new trial. [93] I would allow the appeal on count four, direct that the conditional stay on count three be set aside, that there be a new trial on counts three and four and otherwise dismiss this appeal. "The

Honourable Mr. Justice Chiasson" Reasons for Judgment of the Honourable Madam Justice Saunders: [94] I have had the privilege of reading in draft the reasons for judgment of my colleague, Mr. Justice Chiasson. I agree with the disposition of the appeal he proposes, and with his analysis as it applies to counts 5 and 6. I agree as well that the appeal on count 4 should be allowed and the verdict set aside, the stay on count 3 should be set aside and those two counts should be remitted for a new trial as he proposes. However, I follow a somewhat different analysis. [95] As Mr. Justice Chiasson has recounted, counsel agreed that the delict of count 3 and count 4 were the same. For the reasons he has explained, they are not, and in accepting that agreement, the learned trial judge was led into reversible error. [96] On my reading of his reasons for judgment, the trial judge bound his analysis on count 4 (exercising control, direction or influence such as to aid or abet the complainant to carry out prostitution) to his analysis of count 3 (living on the avails of prostitution). [97] On count 3, the trial judge gave three reasons for his conclusion that guilt was proved beyond a reasonable doubt. He said: [89] Section 212(1)(j), living [on] the avails of prostitution, is complete when it is proved beyond a reasonable doubt that the accused lived in whole or in part on the

prostitution of the complainant. The evidence is clear that he knew she was a prostitute and I conclude it was equally clear that Mr. Nicolaou was living on the proceeds of her prostitution. He admitted taking money from her, although he said it was for drugs, evidence which I find is only partly true, and there is clear evidence, which I do accept, from both the complainant and [the acquaintance] that he told the complainant to go out and work or perform sexual acts for his friends. Clearly Mr. Nicolaou was exercising control and direction over the activities of the complainant and at times brutally so. [90] In any event, I find that he was living [on] the avails of prostitution when he sold her drugs and knowingly received money from her efforts as a prostitute. The sale of drugs to her allowed him to buy his necessaries of life and to purchase more drugs, which in turn he sold to others. Mr. Nicolaou was running a business funded in part by the proceeds of the complainant's prostitution. There is no doubt in my mind whatsoever that Mr. Nicolaou was living on the avails of the complainant's prostitution. [91] Further, s. 212(1)(h) and s. 212(3) when read together, create a presumption that this accused was living on the avails. By his own evidence Mr. Nicolaou knew she was working as a prostitute and he was spending between four and six hours a day at the residence, during

which time he was controlling or directing the complainant's movements for the purpose of compelling her to engage in prostitution so that he would gain, and, in the words of s. 212(3), he was habitually in the company of a prostitute. [92] Given the presumption and what I find was a singular absence of proof to the contrary, Mr. Nicolaou has not rebutted the presumption on a balance of probabilities. In these circumstances, I direct a conditional stay on Count 3 and find the accused guilty on Count 4. [98] I am of the view that a conviction on count 3, had it been registered, could not be sustained. In my view the trial judge demonstrated two errors in these passages. The first is in his analysis in para. 89 of living on the avails of prostitution. He based his conclusion in part on which he described as "clear evidence" that the complainant's friend testified the appellant told the complainant to go out and perform sexual acts for his friends. This statement is a misapprehension of the evidence of that friend. While it might be argued that that evidence does not add materially to an analysis of whether the appellant was living on the avails of prostitution because performing sexual acts for his friends may not be an act of prostitution nor provide avails of prostitution, the trial judge listed this evidence in his short discussion of this aspect of the charge. By relying upon

it I consider he demonstrated its materiality in his reasoning process such that the error fits within the category of error discussed in R. v. Morrissey (1995), 80 O.A.C. 161, 97 C.C.C. (3d) 193, and approved in R. v. Lohrer, [2004] 3 S.C.R. 732, 2004 SCC 80. In other words, it appears to me that the trial judge erred in his appreciation of the evidence and that the misapprehension could have affected the outcome. [99] The second route to finding that the appellant was living on the avails of prostitution was set out in para.

90. For the reasons of Mr. Justice Chiasson, I agree that it is an error to say, as the trial judge did, that the offence is established because the appellant "was running a business funded in part by the proceeds of the complainant's prostitution". [100] The third basis for finding that count 3 was proven beyond a reasonable doubt is found in the reference in paras. 91 and 92 to s. 212(1)(h) and s. 212(3) of the Criminal Code, which create a presumption. Those sections provide: 212(1) Every one who (h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally, (3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j). [101] The trial judge found that the appellant was habitually in the company of a prostitute. This conclusion may have been open to him on count 3. However, it cannot support a conviction on count 4 because s. 212(3) does not apply to s. 212(1)(h). [102] I turn then to the conviction on count 4. The entire discussion is set out in paras. 89-92 of the reasons for judgement set

out above. On my reading of those passages, the judge founded his conviction on count 4 on his conclusion that count 3 was proved. However, two of the pathways to conviction on count 3 are fatally flawed for the reasons I have stated, and the third pathway, the use of the s. 212(3) presumption, cannot apply to count 4 because that count charges an offence under s. 212(1)(h) to which s. 212(3) does not apply. [103] It follows that the conviction on count 4, bound as it is to the judge's conclusion on count 3, must be set aside. Further, given the errors in analysis on count 3 and the need to set aside the verdict on count 4 to which the conditional stay was bound, in my view the conditional stay also should be set aside, and both counts remitted for a new trial, with the appeal on the other two counts dismissed. "The Honourable Madam Justice Saunders" I Agree: "The Honourable Madam Justice Kirkpatrick" [1] Technically, the appellant was not convicted on count three (R. v. Provo, [1989] 2 S.C.R. 3). He may not have a right of appeal on that count (R. v. Foti, 87 C.C.C. (3d) 187 (Man. C.A.)). For a contrary view, see R. v. Bennett (1996), 108 C.C.C. (3d) 175 (Que. C.A.) at pp. 188-189.