J. THE COURT OF APPEAL FOR SASKATCHEWAN HER MAJESTY THE QUEEN and ANGELA GWEN LARSON CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Cameron The Honourable Madam Justice Gerwing COUNSEL: Mr. R. Kergoat for the appellant Mr. D. Rayner for the Crown DISPOSITION: Appeal Heard: March 12, 1996 Appeal Allowed: March 12, 1996 (orally) Reasons: March 14, 1996 On Appeal From: QBCA 18 of 1995, J.C. of Saskatoon Appeal File: 6793 Reasons by: The Honourable Madam Justice Gerwing In concurrence: The Honourable Chief Justice Bayda and The Honourable Mr. Justice Cameron GERWING J.A. The appellant was acquitted after trial in the Provincial Court of communicating with another person for the purpose of engaging in prostitution, contrary to s. 213(1)(c) of the Code. However, on appeal to the Court of Queen’s Bench, a new trial was ordered, and it is from that judgment that this appeal arises. There is no need, in view of our disposition, to conduct an extensive review of the facts. police officer, on duty as an undercover person, had conversation with the accused which formed the basis for the charge. The Queen’s Bench judge, in reviewing the decision of the Provincial Court judge in acquitting, interpreted her oral reasons to include a requirement as an element of the actus reus for an offence under s. 213 that there be a specific conversation with respect to payment of money for specified sexual services. The Queen’s Bench judge concluded that this was an error in law and cited as a correct test a comment in R. v. Schmidt (1987), 1986 CanLII 3096 (SK QB), 53 Sask. R. 75 at pp. 77-78: Applying these principles to the present case, it is my view that the facts before the learned Chief Judge constituted evidence from which properly instructed jury could reasonably infer that the respondent was communicating with female person for the purpose of engaging in an act of sexual intercourse and for which he intended to pay. In summary, the evidence is that the respondent approached woman unknown to him in an area where prostitutes were plying their trade, invited her into his automobile, inquired if she was interested in sex and wanted to know if she was police officer. The fact that the conversation did not reach the point where the matter of payment was discussed would not preclude jury from reasonably concluding that an act of prostitution involving the payment of money for sexual favours was contemplated. It was strongly urged by the Crown, and conceded by counsel for the defence, that this is the correct test. That is, if indeed the Provincial Court judge had found that under s. 213 the actus reus must include a specific conversation specifying the sexual services and the money to be paid for them, she was incorrect. We agree with this. However, as we have repeatedly said in the exercise of our appellate capacity both with respect to judgments and jury charges, the entire reasons must be read to understand the true ratio. Here the Queen’s Bench judge in his appellate capacity focussed on one sentence where the trial judge said: ... think the evidence ... has to be relatively specific on the issue of money for specific sexual services. However on a reading of the entire oral judgment, we are of the view she was, in effect, saying that the evidence failed to convince her beyond a reasonable doubt that the offence had taken place. The fact that she was not adding the need for specific conversation is buttressed by the submission of counsel for the appellant that immediately before giving oral judgment she had refused motion for nonsuit. Were she to have been of the view that such an element was necessary it is probable she would have granted the nonsuit. Thus, while noting that the statement of law by the judge of the Court of Queen’s Bench in his appellate capacity was correct, we are the view that the appropriate disposition is to set aside his judgment and restore the decision of the Provincial Court acquitting the appellant of the offence.
The appellant was acquitted of communicating with another person for the purpose of prostitution. A new trial was ordered on the basis that the Provincial Court judge included a requirement as an element of the actus reus for an offence under s.213 that there be a specific conversation with the respect to payment of money for specified sexual services. The Queen's Bench judge concluded that this was an error in law and cited as a correct test that set out in R. v. Schmidt. HELD: The proper disposition is to set aside the judgment and restore the decision of the Provincial Court acquitting the appellant of the offence. 1)On reading the entire oral judgment the court concluded that the judge was saying in effect that the evidence failed to convince her beyond a reasonable doubt that the offence had taken place. 2)The trial judge was incorrect in finding that under s.213 the actus reus must include a specific conversation specifying the sexual services and the money to be paid.