WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)      In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an offence
    other than an offence referred to in subsection (1), if the victim is under the
    age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c.
    3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rancourt, 2020 ONCA 64

DATE: 20200131

DOCKET: C62735

Simmons, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Rancourt

Appellant

Megan Savard and Julia Kindrachuk, for the appellant

Christine Tier, for the respondent

Heard: October 21, 2019

On appeal from the conviction entered on June 30, 2016
    and the sentence imposed on October 13, 2016 by Justice John M. Johnston of the
    Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was the complainants high school teacher. He does not
    dispute that after the complainant turned 18 years old he participated in
    on-line sexual encounters with her, and that after she left high school this
    progressed to sexual intercourse. The complainant later moved in with the appellant
    and his wife and children, ostensibly to work as the childrens nanny, but in reality
    to facilitate sexual access. The appellant and the complainant kept their
    relationship secret.

[2]

Eventually, the complainant began a relationship with another man. Neither
    of the complainants partners were aware of the complainants relationship with
    the other. During a period of hospitalization for declining mental health, the
    complainant texted the appellant to end their relationship. When the appellant
    sent a text in reply, it was read by the complainants new partner, M.G., who
    thereby learned of the parallel relationships for the first time. The
    complainant maintained her relationship with M.G. Two months after the text
    incident, after the appellant persisted in trying to contact the complainant
    and her parents, the complainant went to the police.

[3]

The appellant admitted the adult sexual affair to the police, including the
    online sexual activity after the complainant had turned 18, but denied that he
    touched the complainant sexually while she was underage.

[4]

What was contested at trial was whether the appellant had engaged in various
    acts to groom the complainant sexually while she was still his student, and (in
    some instances) while she was also under the age of 18. In particular, the
    questions were: (1) whether the appellant had engaged in cybersexual activity with
    the complainant
before
she had turned 18, and (2) whether the
    appellant had engaged in sexual touching of the complainant while he was still the
    complainants teacher, both before and after she turned 18.

[5]

The appellant did not testify and the trial turned, primarily, on the
    credibility of the complainant. The trial judge convicted the appellant of
    sexual assault and sexual exploitation. He was sentenced to imprisonment for
    one year.

[6]

The appellant appeals against conviction on the basis that the trial
    judge committed various errors, including errors in assessing the complainants
    credibility. He also appeals against sentence.

[7]

For the reasons that follow, both appeals are dismissed.

Background

[8]

As stated above, the appellant was the complainants teacher for four of
    her five years of high school. After the complainant turned 18, but while she
    was still a high school student receiving instruction from the appellant, the
    complainant and appellant engaged in sexually explicit messaging with each
    other using a variety of social media platforms. This progressed to the
    complainant masturbating, for the appellants benefit, in her bedroom while the
    appellant watched from his home via webcam, coaching and encouraging her.
    Although the complainant initially testified at the preliminary hearing that this
    cybersexual activity began before she had turned 18, her testimony at trial was
    that it began two months after she turned 18. This was significant as the complainant
    was therefore not a young person within the meaning of s. 153(1) of the
Criminal
    Code
during the cybersexual activity, and that activity could therefore not
    be the basis for a conviction for sexual exploitation under s. 153(1) of the
Criminal
    Code
.

[9]

That left allegations of multiple incidents of sexual touching by the
    appellant, starting when the complainant was in grade 9. Many of these
    allegations involved the appellant touching the complainants breasts over her
    clothing accidentally on purpose, as the trial judge characterized it, or the
    appellant brushing his semi-erect penis against her hand or arm as he walked
    past where she was seated in his classroom. The trial judge accepted the
    complainants evidence that these incidents happened as she attested. However,
    he was left with a reasonable doubt as to whether the appellant had touched her
    on these multiple occasions  such as brushing her breasts with his hand while
    reaching across his car to lock and unlock the passenger door after she was
    seated  with the requisite sexual intent. Accordingly, the trial judge found
    that these incidents could not ground a finding that the appellant had
    committed either sexual interference or sexual assault.

[10]

The only allegation which supported a finding of guilt was what the
    trial judge referred to as the dirty girl game. The complainant testified
    that, starting when she was in grade 9, the appellant would, in the classroom,
    rub his foot against her sock, leaving dirt on it. He would then rub the mark
    off with his hand. In reference to this, he called her a dirty girl. As the
    years progressed, the complainant testified, the touching progressed up her leg,
    under her kilt, and by grade 12 he was touching her near her pelvic area.

[11]

The trial judge found that the instances of the dirty girl game occurring
    before the complainant turned 18 constituted sexual exploitation and sexual
    assault. The instances after she turned 18, and while she was still his student,
    also constituted sexual assault, on the basis that her consent to the activity
    was vitiated by the position of trust that he held over her as his teacher.

[12]

The appellant was convicted of sexual exploitation and sexual assault,
    and sentenced to one year imprisonment.

Issues

[13]

The appellant argues that the trial judge erred:

1.

by misapplying the burden of proof;

2.

in rejecting the evidence of the appellants wife;

3.

by applying different standards of scrutiny to the defence and Crown
    evidence; and

4.

imposing a harsh and excessive sentence.

Analysis

[14]

Each of these issues are addressed in sequence.

Misapplication of the burden of
    proof

[15]

The appellant alleges three errors with respect to the misapplication of
    the burden of proof by: (a) bootstrapping the complainants credibility by
    using her own evidence to confirm her story; (b) rejecting defence evidence on
    the basis that he accepted the complainants evidence; and (c) failing to
    resolve the complainants credibility problems.

(a)

Bootstrapping

[16]

First, the appellant argues that the trial judge bootstrapped the
    complainants credibility by finding her allegations to be credible because of his
    findings about the nature of her relationship with the appellant. But, he
    argues, the trial judges findings about the nature of the complainants relationship
    with the appellant during high school were based solely on the complainants unsupported
    testimony. These findings included that: (a) the appellant sent the complainant
    a text when she was 15, telling her that his wife was away, he was lonely, and
    that it would be nice if she came over; (b) the appellant texted the
    complainant constantly during a school trip to New York City, when the
    complainant was 15; (c) the appellant and complainant pre-arranged a webcam
    chat when the complainant was 16, so that the appellant could see her naked;
    (d) the complainant was 16 when the appellant first told her about a
    pornographic website called Red Tube;  the appellant texted the complainant
    constantly during a second school trip to New York City when she was 17, and distributed
    theatre tickets so that the complainant would be seated next to him; and (f) the
    complainant attended her grade 12 graduation with a platonic friend in order to
    appease the appellant, who texted her throughout the night.

[17]

We do not agree that the trial judge made this error. Each of these findings
    had some support in evidence that was independent of the complainant: (a) the
    appellants former spouse S.C. testified in cross-examination that she went
    away for part of the summer with the children, leaving the appellant alone; (b)
    M.N., a fellow student, testified to her observations of the complainant texting
    during the New York trip and the inferences she drew from her observations; (c)
    recovered text messages between the complainant and the appellant referenced an
    earlier incident when the complainant had shown herself naked to the appellant
    on a webcam; (d) the appellant admitted in his statement to police that he may
    have mentioned the Red Tube pornography site to the complainant while she was in
    high school, and that she may have looked at it; and  both M.N. and Mr. Lopes,
    a colleague of the appellant, testified about their observations of the
    complainant texting during her grad night. Further, Lopes testified about his observations
    of the appellant texting the complainant during a hockey game, and his concerns
    about the appropriateness of this behaviour. In short, there was an entire body
    of evidence  independent of the claimant  supporting the trial judges
    conclusions about the highly unusual nature of the appellants relationship with
    the complainant during high school.

(b)

Rejecting defence evidence

[18]

The appellant argues that the trial judge erred by rejecting the account
    given by the appellant in his police statement. The trial judge is said to have
    reversed the burden of proof  to have accepted the complainants account, and
    then rejected the appellants account because it did not agree with the
    complainants.

[19]

We do not agree. The trial judge gave reasons for independently rejecting
    the appellants exculpatory statements. First, the trial judge was entitled to
    draw a negative inference from the appellants stated memory problems. It
    strained credulity that the appellant could not remember how an unremarkable
    student-teacher relationship transformed, within two months of the
    complainants 18
th
birthday, to the appellant texting the
    complainant to encourage her to shave her genitals and to masturbate for him while
    he watched via webcam. Additionally, S.C. testified in cross-examination that the
    appellant had told her, when he first confessed to the relationship, that he
    had memory blanks related to how this relationship began and how it ended. He
    later admitted to her, according to her testimony, that he had no such memory
    blanks. The trial judge was entitled to draw a negative inference about the appellants
    credibility.

[20]

Second, the trial judge was entitled to find that the appellant was not
    forthcoming in his statement to police. Even though the appellant admitted the
    adult affair to the police, he clearly distanced himself from, and minimized
    his involvement in, the cybersexual encounters he had with the complainant while
    she was his student. His characterization of events  the only thing that did
    happen in high school is that she did the masturbation thing  left out the
    role he played. The text of the Skype chats reveals a different picture  of
    the appellant encouraging and directing his 18-year-old student in how to
    perform sex acts in front of a camera to gratify him sexually.

(c)

Failing to recognize or resolve the complainants credibility problems

[21]

The appellants position at trial was that the complainant was
    chronically deceptive, not credible, and the story of her high school
    relationship with the appellant was simply one of many fabrications. Although the
    trial judge noted that the complainant had significant credibility problems,
    and dedicated 14 pages of the reasons for judgment to his assessment of the
    complainants credibility, the appellant argues that he nevertheless
    misunderstood the appellants submissions and failed to resolve the credibility
    problem.

[22]

We do not agree.

[23]

In her testimony, the complainant was candid about the many concocted
    stories she had told the appellant in the time period leading up to the
    termination of their relationship, including telling the appellant that she had
    a kidney tumour (and manufacturing an incision for added effect), that her
    father had a brain tumour, and that she had attempted suicide while in the
    hospital. The complainant was frank about her and the appellant having both
    lived dual lives, conspiring to have the complainant move in with the appellant
    and his wife and children under the pretext of working as the nanny in order to
    facilitate a sexual relationship without arousing S.C.s suspicion. She also acknowledged
    carrying on simultaneous relationships with the appellant and M.G. for six
    months, keeping each a secret from the other.

[24]

The complainant admitted to these fabrications in examination in chief, explaining
    that she lied in order to get some time away from the appellant. The trial
    judge accepted the complainants rationale for her fabrications. Given the
    context of a controlling relationship, her pattern of lying to the appellant did
    not suggest to the trial judge that she was a person who is prone to dishonesty.
    Rather, these were deliberate falsehoods intended to facilitate temporary escape
    from the appellants control. This assessment was open to the trial judge on
    the evidence before him, and there is no basis upon which we would interfere
    with it.

[25]

The trial judge was also required, as part of his credibility analysis,
    to consider the appellants submission that the complainant had a motive to lie
    (first to M.G., then the police, then the court) about when the sexual
    relationship began and, specifically, how young the claimant was when the
    appellant first touched her for a sexual purpose.

[26]

The appellant argues that the trial judge made errors in how he analyzed
    this question. As we explain below, we agree that some of the trial judges
    remarks were infelicitous. Nevertheless, such errors are peripheral to the
    trial judges credibility analysis and, when read as a whole, the trial judges
    credibility analysis is sound. He conducted an exhaustive examination of the
    complainants credibility, fully alive to her frailties as a witness. We would
    not interfere with that assessment.

[27]

The appellant argues that the trial judge made two errors in rejecting
    the appellants argument that the complainant was motivated to invent the
    allegations of underage sexual contact in order to save her relationship with M.G.

[28]

First, the appellant argues that the trial judge asked the wrong
    question. Instead of
asking whether the complainant subjectively
    believed it would help preserve her relationship
with M.G. if she told him that
    sexual contact with the appellant began when she was 13 years old, the trial
    judge asked whether there would have been any objective benefit to such a
    fabrication.

[29]

There are passages in the reasons which can support the reading advanced
    by the appellant. It may have been clearer if instead of writing, for example, that
    the complainant did not need to make up the additional component of the
    criminal allegations to achieve the result that she did achieve, the trial
    judge had written that the complainant
knew
she did not need to make
    up the additional component. Nevertheless, the formulation used by the trial
    judge is equally capable of supporting an objective or a subjective reading,
    and it is not necessary to read the reasons in the manner proposed by the
    appellant.

[30]

In any event, even if this court accepted the submission that the trial
    judge had applied an objective inquiry, it is not apparent that this would
    constitute an error. The appellants sole authority for the proposition advanced
    is
R. v. Willier
, 2013 BCCA 214, 338 B.C.A.C. 63, a decision dealing
    with
Vetrovec
witnesses. However, although the complainants
    credibility was the central issue at trial, she was not a
Vetrovec
witness.
    Unlike the witness in
Willier
, the complainant was in no criminal
    jeopardy.
Vetrovec
witnesses are those with disreputable and
    untrustworthy backgrounds with a demonstrated moral lack. The complainant
    does not fit either of these descriptors.

[31]

Furthermore, the defence made no submission at trial that, in this case,
    there would be any difference between a subjective and objective assessment of
    benefit. In these circumstances, the trial judge made no error in how he framed
    his analysis.

[32]

Second, the appellant argues that the trial judge erred in concluding as
    a matter of fact that the complainant had no motive to lie. The trial judge found
    that the text messages between the complainant and M.G. suggested that M.G.
    who had been devastated by the revelation that the complainant had a
    long-standing sexual relationship with the appellant  was already mollified when
    he thought the sexual contact began when she was 18. For the trial judge, there
    was no reason for the complainant to exaggerate to win over M.G.

[33]

The appellant, however, argues that the complainant needed the
    allegation of underage sexual contact to preserve the relationship, and that
    the text messages show that M.G. remained somewhat hostile until the
    complainant told him that things began when she was only 13, at which point his
    attitude towards her became more sympathetic.

[34]

The trial judge reasoned that if M.G. had only been told the facts that
    were undisputed at trial  of the adult affair and the unusually close student-teacher
    bond  M.G. would have figured out on his own that there must have been a long sexualized
    history, regardless of whether there was any criminal wrongdoing. There was no need
    to invent the specific allegations of criminal touching to obtain the desired
    sympathy from him. Furthermore, the trial judge noted, M.G. urged her to lie and
    tell her family that she was 18 when the relationship began, so as to spare the
    appellants family from the fallout. He also urged her not to go to the police.
    Significantly, the complainant only went to the police two months later, and
    only then to address the appellants refusal to leave her and her family alone.

[35]

We do not agree that the trial judge made any palpable and overriding error
    in rejecting the theory that the complainant concocted the story of the sexual
    touching from age 13 in order to procure sympathy from M.G. and preserve her
    relationship. The trial judge did not believe that she had fabricated the
    allegations against the appellant. He gave his reasons for believing her. She
    testified for six days and, with the exception of her inability to recall dates
    and times, he was impressed with the consistency of her evidence. He accepted
    her rationale for her admitted fabrications and did not find that they
    undermined her credibility. He did not agree that she was prone to exaggeration
    on any material point. He agreed that her delay in going to the police was
    explained by the context of her relationship with the appellant, and was not a
    mark of fabrication.

Rejecting the evidence of S.C.

[36]

S.C. testified to the effect that although the appellant and the
    complainant were close, the nature of their relationship was not any closer than
    the appellants relationship with any other student, and that contrary to the
    complainants evidence, students did not frequent the appellants classroom at
    the end of the school day. The trial judge rejected this evidence, chiefly
    because it was contradicted by the evidence of other witnesses. But he gave
    five additional reasons for disbelieving her. Of these five additional reasons,
    the appellant argues that one of them contained a fallacious inference by the
    trial judge: that S.C. had initiated, and then suspended, divorce proceedings, because
    if he is found not guilty, she intends to resume a relationship, however, not
    necessarily if he is found guilty.

[37]

The appellant rightly observes that there can be many reasons for suspending
    divorce proceedings, and there was no evidence that S.C. had reconciled with
    the appellant or intended to reconcile with him. The trial judge ought not to
    have speculated about this. Nevertheless, as the Crown argued, the evidence at
    trial established that S.C. remained financially interdependent with the
    appellant. S.C. had filed an application for child support from the appellant,
    and she believed that his future as a teacher  and therefore his financial
    viability  could turn on an acquittal. The trial judge was entitled to
    consider S.C.s interdependence with the appellant. In any event, the status of
    S.C.s relationship with the appellant was only one of several secondary
    reasons the trial judge had for rejecting her evidence.

Applying different standards of
    scrutiny

[38]

It is an error of law to apply a different standard of scrutiny to Crown
    and defence evidence; to minimize problems with Crown evidence while highlighting
    similar or less serious problems with defence evidence. The appellant argues
    that the trial judge, in carrying out his credibility analysis, applied a
    relaxed degree of scrutiny of the Crowns evidence when compared to the scrutiny
    given the defence evidence. He raises four points where there is said to be a divergence.

[39]

First, the appellant contrasts the trial judges rejection of the
    defence theory that the complainant had a motive to lie, with the finding that S.C.
    had a motive to lie based on her statement that her divorce was on hold.

[40]

We do not agree. The two different assessments were not driven by uneven
    scrutiny of evidence. As stated above, the trial judge gave careful scrutiny to
    the argument that the complainant had a motive to lie to M.G. With respect to
    the finding that S.C. had a motive to lie, it was of secondary importance in
    the trial judges credibility analysis, and the evidence was of marginal
    relevance to the allegations.

[41]

Second, the appellant argues that the trial judge drew inconsistent
    inferences from the fact that the appellant and the complainant each lied about
    their affairs to their other partners. Although the trial judge excused the
    complainants lies to M.G., he drew a negative inference from the fact that the
    appellant feigned memory loss when his wife demanded details of the affair.

[42]

Again, this does not constitute uneven scrutiny. The two contexts were
    entirely different. The appellant contrasts the complainants pretending to
    live with the appellants family as a nanny  a deception advanced by the
    complainant and appellant in concert  with the appellants lies to S.C. about
    memory loss after the fact. The trial judge was entitled to draw different inferences
    from the two contextually different deceptions.

[43]

Third, the appellant argues that the trial judge used ambiguities and
    minor inconsistencies in the evidence of S.C. and the police statement given by
    the appellant as evidence that they were downplaying unfavourable facts. This,
    the appellant argues, contrasts with the trial judges lenient attitude towards
    the complainant, whose evidence the trial judge characterized as largely
    consistent, despite inaccuracies and exaggerations.

[44]

Again, the context is vastly different. The appellants statement to the
    police was brief. He said little. The trial judge attributed great significance
    to the few statements that he made that were not simple denials. S.C. testified
    about peripheral matters only and, as stated above, the trial judge had reason
    to discount her testimony. The complainant, by contrast, testified for six days
    on the central matters in issue. In that vastly different context, the trial
    judge was impressed with her overall consistency. This is not uneven scrutiny.

[45]

Fourth, the appellant argues that the trial judge drew inconsistent
    inferences from different witnesses failures of memory. In particular, he contrasts
    the negative inference the trial judge drew from the appellants statement to
    police (that he did not remember how it was that he started to coach the
    complainant to masturbate over Skype), with the trial judges acceptance of the
    complainants vague evidence (that it was an evolution kind of thing).

[46]

This was not uneven scrutiny. The appellants position was that there
    was absolutely nothing unusual about his student-teacher relationship with the
    complainant prior to her turning 18. Within two months he was instructing her,
    via Skype, on how to masturbate while he watched. If things had been as the
    appellant and S.C. had stated, the sexual turn in the relationship must at some
    point have been a sharp and extraordinary change within a defined time period.
    It would have been so alien to the nature of the teacher-student relationship that
    the fact that the appellant could provide no account for how it happened was
    probative. By contrast, the complainant testified that it was an evolution  a
    gradual progression over many years. On her account, it was an increasingly
    sexual relationship that proceeded incrementally. It was not inconsistent, in
    light of the two different backstories, for the trial judge to accept a degree
    of vagueness in the complainants testimony but draw a negative inference from
    the appellants complete absence of memory.

Sentence appeal

[47]

The appellant appeals against sentence based on the assertion that the
    sentence of one year is harsh and excessive, and that the trial judge engaged
    in double counting of the elements of the offence as aggravating factors.

[48]

The appellant characterizes the offence as repeated but brief, low-level,
    sexual touching by a person in authority. He argues that such offences attract
    a sentence between 14 days and six months.

[49]

We do not agree. The sentence is fit and appropriate and there is no
    basis to intervene. The trial judge committed no error in finding that the
    extent of the manipulation and grooming in this case distinguishes it from
    other cases cited. It is relevant that this was a lengthy course of conduct instrumental
    to grooming a student for increasingly intimate sexual activity and dependence.

[50]

The trial judge did not misuse the elements of the offence as
    aggravating factors. The abuse of a person under the age of 18 and the abuse of
    authority are both aggravating factors listed in s. 718.2(a) of the
Criminal
    Code
, and the sentencing judge is required to take them into account. Here,
    the trial judge did not use these as stand-alone aggravating factors, but mentioned
    them in the context of explaining the nature of the sexual grooming.

Disposition

[51]

The appeal against conviction is dismissed. Leave to appeal sentence is
    granted but the sentence appeal is dismissed.

Janet Simmons J.A.

David Watt J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Randhawa, 2020 ONCA 38

DATE: 20200122

DOCKET: C65708

Hoy A.C.J.O., Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Prithvi Randhawa

Appellant

Owen Wigderson, for the appellant

Michael S. Dunn, for the respondent

Heard: December 13, 2019

On appeal from the sentence imposed by Justice James R.
    Chaffe of the Ontario Court of Justice on July 24, 2018.

Nordheimer J.A.:

A.

Overview

[1]

Prithvi Randhawa appeals the sentence imposed on him by the sentencing
    judge of nine years (before credit for pre-sentence custody) concurrent on
    three counts of impaired driving causing death and five years concurrent on one
    count of impaired driving causing bodily harm.

[2]

The appellant advances two alleged errors made by the sentencing judge.
    First, he contends that the sentencing judge erred in his parity analysis in
    deciding on where he fit within the ranges of sentence for the offences
    involved. In particular, the appellant says that the sentencing judge omitted
    or mischaracterized certain facts from other cases to which he referred in
    deciding on the appropriate sentence. The appellant also says that the sentencing
    judge misapprehended a key submission made by the defence. Second, the
    appellant contends that the sentencing judge failed to consider a significant
    collateral consequence that the appellant will suffer arising from his conduct
    and this led him to impose a sentence that was unfit.

[3]

I would grant leave to appeal and allow the sentence appeal. The trial
    judge erred in his parity analysis based, at least in part, on an erroneous
    characterization of the appellants conduct relative to the conduct revealed in
    the comparative cases to which he referred.

B.

Background

[4]

The basic facts can be summarized briefly. After a night of drinking,
    the appellant drove his car, with four other occupants, at a high rate of speed
    through a residential neighbourhood. He had approximately twice the legal limit
    for alcohol in his system. Eventually, his car clipped another car, he lost
    control of the vehicle, the vehicle went airborne and crashed. All four
    passengers were ejected from the car. Three of them died and one was seriously
    injured. The appellant himself suffered a traumatic brain injury in the crash. The
    appellant was 22 years old and his passengers ranged in age from 19 to 24 years
    old.

C.

Analysis

[5]

I begin by noting the principle laid down in
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11: [E]xcept where a sentencing
    judge makes an error of law or an error in principle that has an impact on the
    sentence, an appellate court may not vary the sentence unless it is
    demonstrably unfit.

[6]

Central to his conclusion on what was the appropriate sentence to impose
    on the appellant, was the sentencing judges view of the appellants conduct
    relative to the conduct revealed by three prior cases. On that central point, the
    sentencing judge said, at para. 53: In terms of parity in sentencing, I find
    that his egregious conduct exceeds that of the drivers in the cases of
Kummer
,
Luskin
and
Muzzo
. The sentencing judge repeated this finding
    at para. 57. The sentencing judge then imposed a sentence of nine years, one
    year more than the sentences in
R. v. Kummer
, 2011 ONCA 39, 103 O.R.
    (3d) 641 and
R. v. Luskin
, 2012 ONSC 1764, 282 C.C.C. (3d) 542, but
    one year less than the sentence in
R. v. Muzzo
, 2016 ONSC 2068, 353
    C.C.C. (3d) 411.

[7]

The sentencing judge did not provide any reasons for this central finding.
    While he does review the aggravating and mitigating factors relating specifically
    to the appellant in his reasons, he does not explain how any of those factors
    would support a finding that the appellants conduct was more egregious than
    that of the offenders in those three other cases.

[8]

I have reviewed the facts in this case and the facts in
Kummer
,
Luskin
, and
Muzzo
, and I am unable to find a basis upon which
    the sentencing judges finding could be supported. This is of concern because,
    as I have said, it is this finding that clearly drove the sentencing judge to
    determine that a sentence of nine years was appropriate.

[9]

The mere failure to give reasons does not, by itself, amount to an error
    of law. As noted by McLachlin C.J.C. in
R. v. R.E.M.,
2008 SCC 51,
    [2008] 3 S.C.R. 3, at para. 37:

As we have seen, the cases confirm that a trial judge's reasons
    should not be viewed on a stand-alone, self-contained basis. The sufficiency of
    reasons is judged not only by what the trial judge has stated, but by what the
    trial judge has stated
in the context of the record, the issues and the
    submissions of counsel at trial
. The question is whether, viewing the
    reasons in their entire context, the foundations for the trial judge's
    conclusions  the why for the verdict  are discernable. If so, the functions
    of reasons for judgment are met. [Emphasis in original.]

[10]

In this case, the why  the basis for the sentencing judges finding that
    the appellants egregious conduct exceeds that of the drivers in the cases of
Kummer
,
Luskin
and
Muzzo
  is neither obvious nor discernable. It is
    also not supported in the context of the record.

[11]

That failing leads to the concern that the sentencing judge misapplied the
    parity principle and thus erred in his conclusion. It is an error that clearly
    impacted on the sentence because it was the sentencing judges comparative view
    of the actions of the appellant, in relation to the actions of the accused in
    those three other cases, that drove him to impose the sentence that he did. It
    thus falls within the first of the two categories of cases identified in
Lacasse
,
    at para. 44, that warrant appellate intervention, that is, the failure to
    consider a relevant factor or the erroneous consideration of an aggravating or
    mitigating factor that had an impact on the sentence. This is to be contrasted
    with the second category, noted at para. 52, where [i]t is possible for a
    sentence to be demonstrably unfit even if the judge has made no error in
    imposing it.

[12]

As a consequence of the error in the application of the parity principle,
    it falls to this court to inquire into the fitness of the sentence and replace
    it with the sentence it considers appropriate:
Lacasse
at para. 43.
    In that regard, this court determined in
R. v. Altiman
, 2019 ONCA 511,
    56 C.R. (7th) 83, that there was a range of four to six years for these
    offences where the offender does not have a prior criminal or driving record
    and a range of between seven and one-half to 12 years where the offender has a
    prior criminal or driving record: at para. 70. At the same time, I note that the
    decision in
Lacasse
holds that sentencing ranges are primarily
    guidelines, and not hard and fast rules: at para. 60.

[13]

In my view, the conduct of the appellant in this case is very similar to
    that of the offenders in
Kummer
and
Luskin
. In each case, the
    offender had a high blood alcohol content, drove at excessive speed, and caused
    multiple deaths. Two facts distinguish the appellant from those offenders
    though. First, his young age distinguishes him from the offender in
Kummer
.
    He was 22 years old at the time of the offence, similar to the age of Mr.
    Luskin. Second, and more importantly, unlike those other accused, the appellant
    suffered very serious injuries, including a traumatic brain injury that has
    left him without memory of the events. He is both physically and mentally
    vulnerable as a result. This is a serious mitigating factor to which the
    sentencing judge failed to give adequate consideration.

[14]

This latter fact would suggest that a sentence should be imposed on the
    appellant that is slightly below the ones that were imposed in
Kummer
and
Luskin
. In saying that, I recognize that making comparisons has
    its limits. No two cases are ever identical. The principles of parity and
    consistency are not to be tested against such a standard. As Lamer C.J.C. said
    in
R. v. M. (C.A.),
[1996] 1 S.C.R. 500, at para. 92: Sentencing is
    an inherently individualized process, and the search for a single appropriate
    sentence for a similar offender and a similar crime will frequently be a
    fruitless exercise of academic abstraction. Nevertheless, it remains a goal of
    the sentencing process to ensure that similar sentences are imposed on similar
    offenders for similar offences committed in similar circumstances:
Lacasse
,
    at para. 2.

[15]

In my view, the proper application of the parity principle would lead to
    a sentence of seven years being imposed on the appellant.

[16]

Before finishing, I should say that I have had the benefit of reviewing
    the dissenting reasons of my colleague. She outlines a possible basis by which
    the sentencing judges conclusion could be justified. I have two concerns with
    her approach, though. My first concern is that there is no way for this court
    to know whether the justification that my colleague has developed mirrors what
    the sentencing judge had in mind and thus permits meaningful appellate review.

[17]

My other concern is that many of the points upon which my colleague
    relies to justify the sentencing judges result involve very fine line
    distinctions for sentencing purposes. For example, comparing 122 km/h in a 70
    km/h zone with 135 km/h in a 60 km/h zone when it comes to considering the
    impact of speeding, or whether an accused is 20 or 22 when it comes to a
    youthful offender, or the presence or absence of demerit points when a driving
    record is proven
[1]
,
    strike me as thin reeds upon which to rely to remove 12 additional months of a
    persons liberty.

[18]

Finally, in light of my conclusion, it is unnecessary to address the
    other issues raised. Nevertheless, I would add that I do not accept the
    appellants contention regarding collateral consequences. On this point, the
    appellant said that he was subject to numerous lawsuits emanating from these
    events, lawsuits that would ultimately leave him subject to large judgments
    that he would be unable to honour. The appellant contended that this was a
    consequence that he would suffer arising from his conduct and that should
    militate against the sentence to be imposed.

[19]

The appellant complains that the sentencing judge did not mention this contention
    in his reasons. While true, that fact does not amount to an error. For one, a
    judge is not required to mention every argument that may be made. For another,
    it is not a consequence that I would see as having any significance to the
    determination of the ultimate penalty to be imposed. It is likely that there will
    often be lawsuits that will arise from such events. That reality fails to
    distinguish this case from any other of its type.

D.

Conclusion

[20]

I would grant leave to appeal sentence and I would allow the appeal. I
    would reduce the appellants sentence to seven years, leave the driving
    prohibition unchanged and set aside the victim impact surcharge.

I.V.B. Nordheimer J.A.

I agree. P. Lauwers. J.A.

Hoy A.C.J.O. (Dissenting)

[21]

I am not persuaded that this court is justified in intervening with the sentence
    imposed by the sentencing judge.

[22]

Except where a sentencing judge makes an error of law or an error in
    principle that has an impact on the sentence, an appellate court may not vary
    the sentence unless it is demonstrably unfit:
R. v. Lacasse
, 2015 SCC
    64, [2015] 3 S.C.R. 1089, at para. 11. The appellant does not argue that the
    sentence imposed is demonstrably unfit, and I am not satisfied that the
    sentencing judge made an error of law or principle.

[23]

I disagree with my colleague that the sentencing judge made an error in
    principle in finding that the appellants conduct was more egregious than that
    of the drivers in the cases of
R. v. Kummer
, 2011 ONCA 39, 103 O.R.
    (3d) 641,
R. v. Luskin
, 2012 ONSC 1764, 282 C.C.C. (3d) 542, and
R. v. Muzzo
, 2016
    ONSC 2068, 353 C.C.C. (3d) 411  other cases in which the offender caused
    multiple deaths.

[24]

The sentencing judge carefully considered, and reviewed the facts in,
    each of
Kummer
,
Luskin
, and
Muzzo
. On the record
    before him, it was open for the sentencing judge to conclude that the appellants
    conduct was more egregious than that of the drivers in these other cases.

[25]

The appellant was travelling at a faster speed in a zone with a lower
    speed limit than was the driver in
Kummer
. As the sentencing judge
    detailed, Mr. Kummer was travelling at 122 km/h in a 70 km/h zone, whereas, in
    the moments before impact, the appellant was travelling towards a stale red
    light at 135 km/h in a 60 km/h zone.

[26]

The appellant was slightly older, more intoxicated, and had a worse
    driving record than the driver in
Luskin
. Mr. Luskin was about 20
    years of age at the time of the collision, whereas the appellant was 22 years
    of age. Mr. Luskin had a blood alcohol concentration (BAC) between 122 and
    157 mg of alcohol in 100 mL of blood at the time of collision:
Luskin
,
    at para. 5. As the sentencing judge noted in this case, the appellant had a BAC
    at the time of driving between 178 and 204 mg of alcohol in 100 mL of blood. As
    the Crown highlighted in its sentencing submissions, at the time of sentencing,
    it was a statutorily mandated aggravating factor under s. 255.1 of the
Criminal
    Code
, R.S.C. 1985, c. C-46, to have a BAC above 160 mg in 100mL of blood.
    The appellant was above this threshold, while Mr. Luskin was below it.
    Moreover, Mr. Luskins driving record was negligible:
Luskin
, at
    para. 25. By contrast, the sentencing judge in this case noted that the
    appellant had amassed eight demerit points in two years of driving and
    described the appellants driving record in this way, at para. 27:

In January of 2014, [the appellant] was convicted of driving a
    motor vehicle unaccompanied and had his licence suspended until March of 2014.
    In January of 2015, he disobeyed a traffic sign. In the same month he was found
    travelling 90 [km/h] in a 70 [km/h] zone. In March of 2016, he failed to stop
    at an intersection. Five days before the incident, in which he drove at a rate
    of no less than 135 [km/h] into the intersection of Jane and Sheppard Avenue
    West against a red light, he was found to have disobeyed a red light.

[27]

As to
Muzzo
, the appellant was driving faster in a busier area
    with a lower speed limit and had more demerit points than Mr. Muzzo. The
    appellant was travelling significantly faster than Mr. Muzzo was (135 km/h
    compared to 85km/h at time of impact) and in a zone with a lower speed limit
    (60 km/h, compared to 80 km/h): see
Muzzo
, at paras. 6, 23. The
    collision in
Muzzo
occurred in a less developed area of York Region:
Muzzo
, at para. 5; whereas the appellants collision took place at
    Jane Street and Sheppard Avenue West and other vehicles were in the appellants
    path. Additionally, while Mr. Muzzo had a lengthy prior record for driving
    infractions, including ten convictions for speeding, in contrast to the
    appellant, he did not have any demerit points at the time of the offence:
Muzzo
,
    at paras. 54, 71. In any event, the sentencing judge imposed a lesser sentence
    on the appellant than was imposed on Mr. Muzzo.

[28]

Moreover, the sentencing judge concluded that the appellants reckless
    driving in the moments leading up to the collision was an additional
    aggravating factor. In none of
Kummer
,
Luskin
, or
Muzzo
is there discussion of additional recklessness leading up to the collision that
    put others at risk beyond those tragically injured or killed in the collision.
    By contrast, in this case, the sentencing judge explicitly noted that the
    appellants reckless driving in the moments before the collision included
    fleeing responsibility for another accident, travelling at excessive speed,
    and weaving in and out of traffic: at para. 58. The sentencing judge described
    the appellants reckless driving in detail, at paras. 12-13:

At 3:18 [the appellant] drove the Acura out of the parking lot
    onto Jane Street south travelling at a high rate of speed. He passed a Mercedes
    at speed north of Shoreham drive. The rear bumper of [the appellants vehicle]
    flew off striking the Mercedes. The two cars stopped at the light and the
    passenger of the Mercedes rolled down the window and the driver and passenger
    told [the appellant] that they should exchange information because of the
    accident. [The appellant] replied, Have you ever seen a fucking V6?, then
    sped off driving very quickly on Jane Street. [The appellant] sped, moving from
    lane to lane, straddling lanes and accelerated at an extremely high rate of
    speed while swerving and weaving between traffic.

[The appellant] approached a stale red light at Sheppard Avenue
    West. A white Acura was stopped waiting for the light. [The appellant]
    approached at no less than 135 [km/h] in the posted 60 [km/h] zone, driving
    into the right rear portion of the stopped car, continued on through the
    intersection, mounted the southwest curb across the sidewalk colliding with a
    traffic signal pole. The trunk of his vehicle remained at the pole, the rest of
    the car shot into the air, rotating, striking trees and a fence lining the
    adjacent golf course landing on its roof in the grass west of the sidewalk,
    south of the intersection.

[29]

As I have stated, on this record, it was open to the sentencing judge to
    conclude that the appellants conduct was more egregious than that of the
    drivers in
Kummer
,
Luskin
, and
Muzzo
.

[30]

I also reject the appellants argument that the sentencing judge erred
    in principle in his parity analysis by failing to consider that the victims
    were passengers who had asked the appellant for a ride, after engaging in an
    evening of drinking, as opposed to innocent members of the public, lawfully
    using the highways. He submits that the sentencing judge misapprehended his
    submission. The sentencing judge stated that the Court cannot appreciate any
    principled reason for the notion that those that kill their friends and family
    are less morally blameworthy or the lives of the deceased less valued, than
    when they take the lives of a stranger: at para. 50. However, the appellant
    clarifies that he does not argue that his actions were less morally blameworthy
    because the victims had asked for a ride. Rather, the appellant argues his
    victims were less vulnerable than those in
Kummer
,
Luskin
,
    and
Muzzo
because they voluntarily assumed the risk of being in an
    accident and suffering death or bodily harm as a result. In effect, he argues
    that an aggravating factor that was present in those cases was absent here.

[31]

According to the appellants admissions pursuant to s.
    655 of the
Criminal Code
, all the victims had been drinking. Ravina Budhoorams BAC was 71 mg in
    100 mL; Rivera Ramsahais BAC was 235 mg in 100 mL; Tej Gangoos BAC was 139 mg
    in 100 mL; and Atul Vermas BAC was between 72 and 92 mg in 100 mL. Even if
    voluntary assumption of risk might, in certain circumstances, operate as
    distinguishing factor (and I do not decide that it could), it cannot do so in
    this case where the victims judgment and ability to assess risk, like that of
    the appellant, was impaired by alcohol. Further, innocent members of the
    public, lawfully using the roads, were at risk. The appellants bumper flew off
    and struck another vehicle he passed at speed before he hit another vehicle
    stopped at a red light, lost control of his own vehicle and crashed.

[32]

Finally, I agree with my colleague that the sentencing
    judges failure to address and accept the appellants argument that the fact
    that he is subject to numerous lawsuits as a result of these events is a mitigating
    factor, or at least a distinguishing factor, does not constitute an error in
    principle.

[33]

Accordingly, I would grant leave to appeal sentence,
    but dismiss the appeal.

Released: A.H January 22, 2020

Alexandra Hoy
    A.C.J.O.

[1]

I note, for example, that if a person is convicted of certain
    offences and the penalty imposed by the court includes a period of licence
    suspension, no demerit points are recorded:

Demerit Point System
, O.
    Reg. 339/94, ss. 2-3, made under the
Highway Traffic Act
,
    R.S.O. 1990, c. H.8.


WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (2.1),
    (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall
    continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following
    offences;

(i)      an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by
    the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, make the order.

(3)     In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43,
    s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48;
    2015, c. 13, s. 18.

486.6(1)       Every person who
    fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sinclair, 2020 ONCA 61

DATE: 20200130

DOCKET: C64886

Pardu, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marcus Sinclair

Appellant

Andrea Vanderheyden, for the appellant

Jeremy Tatum, for the respondent

Heard: January 6, 2020

On appeal from the convictions entered
    on May 17, 2017 and the sentence imposed on October 12, 2017 by Justice Nancy
    Mossip of the Superior Court of Justice.

Pardu J.A.:

[1]

The appellant appeals from convictions for trafficking in persons over
    the age of 18 years and theft. He submits that the trial judge erred in her
    charge to the jury in three respects and further by amending the indictment
    charging theft. Specifically, the appellant argues that the trial judge:

(1)

provided misleading
    instructions on the meaning of exploitation as defined in s. 279.04(1) of the
Criminal Code
, R.S.C., 1985, c. C-46;

(2)

did not adequately
    relate the Facebook messages from the complainant to the appellant to the
    principles governing prior inconsistent statements and explain more fully the
    significance those messages had for the complainants credibility;

(3)

did
    not adequately explain psychological safety as it relates to the definition of
    exploitation; and

(4)

inappropriately
    amended the indictment from an allegation that the appellant stole four cell
    phones and a tablet to theft of three cell phones and a tablet, to conform to
    the complainants evidence.

[2]

I do not accept these arguments and would dismiss the appeal from
    conviction.

[3]

The appellant also appeals from his sentence, alleging the trial judge
    erred in failing to consider his pretrial custody. The Crown concedes that the
    appellant should have been given this credit. I would allow the appeal from
    sentence and vary the sentence accordingly.

A.

BACKGROUND

[4]

The complainant was homeless and living in a shelter when she met the
    appellant. She was about 18 or 19 years old. She was working as a sex trade
    worker. Her two children were in custody of the Childrens Aid Society. The
    appellant offered her a place to live in his apartment. They were together for
    approximately seven years.

[5]

The complainant said the appellant led her to believe she could have a
    better life and he would adopt her children if she worked hard. She testified
    that he mentally abused and controlled her, saying that he:

·

kept most of the money she earned

·

took calls from clients, posted ads for her, told her what to
    charge clients, and devised a pseudonym for her

·

sometimes hid in the hotel room when she was with a customer, and

·

called her lazy for not wanting to work and not taking calls from
    clients.

[6]

She said she tolerated the way he treated her because she had nowhere to
    go, no money, no friends or family to turn to, and he was all she had. She also
    said that, despite not being in a romantic relationship with the appellant, she
    felt attached to and invested in him due to the time and money she had given
    him.

[7]

She had hundreds of clients over the years when she was with the
    appellant. During cross-examination, the complainant said that no one told her
    there would be consequences if she refused a client. Sometimes she left the
    appellant and went to other cities, although she still provided him with her
    earnings from Edmonton, for example.

[8]

The appellant did not testify. At trial, his defence was that he was the
    complainants friend who helped her with various aspects of her sex trade work,
    at the complainants request. The appellant also took the position that the
    complainant chose to work in the sex trade of her own free will and denied any
    coercion or violence on his part.

B.

STATUTORY PROVISIONS

[9]

The appellant was charged under section 279.01(1)
    of
Criminal Code
, which reads 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

Exploitation is defined under section
    279.04(1) of the
Criminal Code
:

For the purposes of sections 279.01 to 279.03,
    a person exploits another person if they cause them to provide, or offer to
    provide, labour or a service by engaging in conduct that, in all the
    circumstances, could reasonably be expected to cause the other person to
    believe that their safety or the safety of a person known to them would be
    threatened if they failed to provide, or offer to provide, the labour or
    service.

[10]

The first element of the offence is an action by
    the accused, who must be a person who recruits, transports, transfers,
    receives, holds, conceals or harbours a person, or exercises control, direction
    or influence over the movements of a person. This court explained the meaning
    of influence in this context in
R. v. Gallone
, 2019 ONCA 663, 147
    O.R. (3d) 225, at para. 47:

Consistent with
Perreault
, I would
    define exercises influence over the movements of a person for the purposes of
    s. 279.01(1) as something less coercive than exercises direction. Exercising
    influence over a persons movements means doing anything to affect the persons
    movements. Influence can be exerted while still allowing scope for the persons
    free will to operate. This would include anything done to induce, alter, sway,
    or affect the will of the complainant. Thus, if exercising control is like
    giving an order that the person has little choice but to obey, and exercising
    direction is like imposing a rule that the person should follow, then
    exercising influence is like proposing an idea and persuading the person to
    adopt it. [Footnote omitted.]

[11]

There was no substantial dispute as to this
    element of the offence at trial. There can be no doubt the appellant exercised
    influence over the complainant by persuading her to live with him, by telling
    her how much to charge customers, and by posting ads for her to work as a sex
    trade worker, among other things.

[12]

The second element is that the accuseds actions
    must be for the purpose of exploiting or facilitating the exploitation of the
    complainant. Actual exploitation is not required. The focus is on the accuseds
    state of mind. Where exploitation arises on the facts, inferring that the
    accuseds purpose was to exploit the victim will usually be a relatively
    straightforward task:
Gallone
,
at para. 54;
R. v. A.A.
,
2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 87.

[13]

The third element is met if the accused causes
    the complainant to provide or offer to provide a service. Again, there was no
    dispute that the complainant provided and offered to provide services as a sex
    trade worker.

[14]

The fourth element is that the accused so causes
    the complainant to provide or offer a service by engaging in conduct that, in
    all the circumstances, could reasonably be expected to cause the other person
    to believe that their safety or the safety of a person known to them would be
    threatened if they failed to provide, or offer to provide, the labour or
    service. Actual exploitation is not necessary. The fourth element is assessed
    on an objective basis. Safety includes protection from psychological harm:
A.A.
, at paras. 71-73;
Gallone
, at paras. 53-54.

[15]

Circumstances that might be relevant when assessing
    whether conduct could reasonably be expected to cause a complainant to fear for
    their safety might include:

·

the presence or absence of violence or threats

·

coercion, including physical, emotional or
    psychological

·

deception

·

abuse of trust, power, or authority

·

vulnerability due to age or personal
    circumstances, such as social or economic disadvantage and victimization from
    other sources

·

isolation of the complainant

·

the nature of the relationship between the
    accused and the complainant

·

directive behaviour

·

influence exercised over the nature and location
    services provided

·

control over advertising of services

·

limitations on the complainants movement

·

control of finances

·

financial benefit to the accused, and

·

use of social media to assert control or monitor
    communications with others.

For an example in which some of these
    factors are applied, see
R. v. Crosdale
, 2018 ONCJ 800, at paras. 139,
    144, and 148-169.

C.

ANALYSIS

[16]

I turn to a consideration of the specific errors
    alleged by the appellant.

(1)

The trial judge provided proper instructions on the meaning of
    exploitation as defined in s. 279.04(1) of the
Criminal
    Code

[17]

The
    appellant points to the following section of the charge:

Let us look at the definition of
    exploitation. We can take out the words or the safety of a person known to
    them, because there is no evidence that [the complainant] felt the safety of
    another person would be threatened. The labour or service [the complainant]
    said she provided was that of prostitution. It is not necessary for this
    offence that you find that prostitution occurred, though [the complainant]
    testified that it did. As well, if you accept [the complainants] testimony as
    to Mr. Sinclair advertising her sexual services on certain websites known for
    this purpose, or answered calls on her behalf, then that conduct would come
    with the definition of offer to provide a service.

[18]

The appellant says this instruction was unclear and
    conflated the activity of offering to provide services for a complainant with
    forcing a complainant to offer to provide services. He argues that the trial
    judge essentially told the jury that because the appellant advertised the
    complainants services and answered calls for the complainant, his behaviour
    fell within the definition of offering to provide a service.

[19]

I do not agree. In this portion of the charge,
    the trial judge was addressing the third element as described above, about
    which there was little controversy. This portion of the charge had nothing to
    do with the appellants purpose or whether the conduct was exploitive.

(2)

The trial judge provided proper instructions regarding the
complainants Facebook messages and prior inconsistent statements

[20]

After the complainant spoke to police and the
    appellant was charged, the complainant sent a number of Facebook messages to
    the appellant, including the following:

·

You never were the bad guy.

·

I want this to work I will fix it

·

They want to tap my phone delete the messages

·

You the realize nigga Ive ever met I miss you

It
    ain't right without you

·

I have enough to help you

Let
    me help you we was good

Here
    everything I said to them was a lie I want this to work.

·

I only still wanna be your partner if you want
    me too

·

Can u put something up for me

[21]

The trial judge gave the jury full and legally
    correct instructions on the use of prior inconsistent statements. She reminded
    the jury that the complainant had agreed that she had numerous communications
    with the appellant on Facebook, that they would have the written communications
    with them in the jury room, and that she was not going to go through them in
    her charge.

[22]

This was sufficient in the context of a three-day
    jury trial, given that the jury had the written communications with them during
    their deliberations. The jury acquitted the appellant of two counts of assault
    and one count of withholding documents, so it is clear the jury did not
    uncritically accept the complainants testimony.

(3)

The trial judge adequately explained psychological safety as it
    relates to the definition of exploitation

[23]

The
    trial judge instructed the jury on this issue as follows:

The reference to safety in the above
    definition requires further elaboration. This definition does not require that [the
    complainants] safety actually be threatened, and safety includes a
    consideration of psychological safety.

Based on all of
    the evidence, if you find either that it was reasonable that [the complainant]
    felt her safety was threatened, or simply that it could reasonably be expected
    that a person in [the complainants] situation would believe that her safety,
    either physical or psychological, was threatened, for example by any conduct
    that you find Mr. Sinclair said or did to her, that part of the definition
    would also be met. The test to be proved by the Crown is not whether [the
    complainant] was actually threatened. The test is whether you find the conduct
    of Mr. Sinclair in all the circumstances, could reasonably be expected to cause
    [the complainant] to believe that her safety was threatened.

So the evidence
    related to this question is: [the complainant] testified that she felt she had
    to go to work as a prostitute, because she was afraid of Mr. Sinclair, in other
    words that her safety was threatened. She said he did punch her on one occasion
    and tipped her out of a chair on another occasion when he was angry. You will
    recall that she also said they had numerous arguments in which he insulted her.
    She said he threw the fact that her children were taken by the CAS in her face.
    Remember what I said about safety including psychological safety as well as
    physical safety.

[The complainant] also testified that Mr.
    Sinclair kept most of the money she made as a prostitute. [The complainant]
    said she had no place to live; she had no friends or family. [The complainant]
    told you that she stayed because she was emotionally abused by Mr. Sinclair,
    and he was all she had.

[24]

I do not agree that the trial judge needed to
    import the notions of actual serious bodily harm or subjective fear for
    safety drawn from other statutory contexts. The use of the word safety in
    itself suggests more than a trivial interference with either physical or
    psychological well-being. The assessment here was an objective one: could the appellants
    conduct be reasonably expected to cause [the complainant] to believe that her
    safety was threatened.

[25]

In the circumstances of this case, no prejudice
    was occasioned by the trial judges failure to further define safety or
    psychological. On a functional review of the charge, the submissions of
    counsel, and the evidence adduced at trial, I am satisfied that the jury was
    left with a sufficient understanding of the facts as they relate to the
    relevant issues:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at para. 14.
    Put another way, the jurors would adequately understand the issues involved,
    the law relating to the charge the accused is facing, and the evidence they
    should consider in resolving the issues:
R. v. Cooper
, [1993] 1
    S.C.R. 146, at p. 163;
R. v. Newton
, 2017 ONCA 496, 349 C.C.C. (3d)
    508, at para. 13.

(4)

The trial judge did not err in allowing the amendment
    to the indictment

[26]

Section 601(3)(b) of the
Criminal Code
provides
    that a court shall, at any stage of the proceedings, amend the indictment where
    it appears that the indictment fails to state or states defectively anything
    that is requisite to constitute the offence, or is in any way defective in
    substance, and the matters to be alleged in the proposed amendment are
    disclosed by the evidence taken on the trial. In deciding whether to grant the
    amendment, as per s. 601(4) of the
Criminal Code
, the court must
    consider the following:

(a)

the matters disclosed by the evidence taken on
    the preliminary inquiry (if relevant);

(b)

the evidence taken on the trial, if any;

(c)

the circumstances of the case;

(d)

whether the accused has been misled or
    prejudiced in his defence by any variance, error or omission; and

(e)

whether, having regard to the merits of the
    case, the proposed amendment can be made without injustice being done.

[27]

Here, the amendment changed the number of
    cellphones alleged to have been stolen from four to three. There was no dispute
    the property was valued at less than $5000. The appellants defence was that he
    did not steal any of the complainants property, and that the Crown did not
    prove the property belonged to the complainant.

[28]

I agree with the Crown that the appellant was
    not prejudiced by the amendment. The nature of the property alleged to have
    been stolen did not change and the offence remained the same. The jury had the complainants
    inconsistent statements about the number of cell phones. The jury could use
    those statements to assess her credibility regarding the theft allegation.

[29]

The trial judge did not err in permitting the
    amendment.

(5)

Sentence appeal

[30]

The appellant was sentenced to 30 months incarceration.
    Before release on bail, he spent 14 days in pretrial custody. The Crown
    concedes that the sentence should be varied to give 21 days credit for the
    pretrial custody.

(6)

Language used to describe the complainant

[31]

The
    complainant was a troubled, homeless, and vulnerable person when she met the
    appellant. The jury concluded that he exploited her, thereby victimizing her. I
    have chosen to refer to her in this decision as a sex trade worker rather
    than a prostitute because, in my view, the descriptor prostitute carries
    with it negative connotations that risk dehumanizing or demeaning a victim or
    complainant. Sex trade worker is a more neutral descriptor that lessens this
    risk.

[32]

As
    pointed out in
R. v. Barton
, 2019 SCC 33, 376
    C.C.C. (3d) 1, at para. 230,
per
Abella and
    Karakatsanis JJ. (dissenting in part, but not on this point):

Based on studies that found that jurors were more likely to
    convict a defendant accused of raping a woman with a chaste reputation than an
    identical defendant charged with assaulting a prostitute, this Court in
Seaboyer
expressly warned against the use of the word
    prostitute because the use of this term is intrinsically linked to twin
    myths reasoning and can lead to substantial prejudice in the way the jury assesses
    the evidence. [Citations omitted.]

[33]

The
    word prostitute is no longer used in current provisions of the
Criminal Code
.

D.

DISPOSITION

[34]

For the reasons above, I would dismiss the
    conviction appeal and would allow the sentence appeal by reducing the sentence
    to 29 months and 7 days to reflect the appellants pretrial custody credit.

Released: January 30, 2020

GP

G.
    Pardu J.A.

I
    agree David Brown J.A.

I
    agree Grant Huscroft J.A.