COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Veerasingam, 2021 ONCA 350

DATE: 20210526

DOCKET: C66227

Watt, Benotto and Harvison Young
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sivanesan Veerasingam

Appellant

Richard An, for the appellant

Katie Doherty, for the respondent

Heard: May 18, 2021 by video
    conference

On appeal from the conviction entered on
    June 4, 2018 by Justice Christine Pirraglia of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Project Raphael is a police undercover operation
    designed to address the sale of sexual services of children. The police post an
    ad pretending to be a young girl in the section of a website called Backpage
    which advertises sexual services of escorts. The ad in this case included a
    photograph ostensibly of the young girl but was actually a police officer. She was
    scantily dressed and her face was not shown. The ad professed that the poster was
    18 years old, the minimum age required by Backpage.

[2]

The appellant responded to one of the ads. A
    series of text messages followed between the appellant and the officer. They
    included the following three exchanges:

Officer:        are you OK if Im not 18 yet
    hun? Some guys are down and some arent

Appellant:    If you OK with

Officer:        Im 15 hun im okay with it if u
    are

Appellant:    Im OK

Appellant:    Are you new in the businesses???

Officer:        Im
    15 of course im new

[3]

The appellant was given the hotel address and
    the room number. He went to the hotel and was arrested when he arrived at the
    room. The appellant was charged with and convicted of luring a person under 16
    by means of telecommunication (s. 172.1(2) of the
Criminal Code
)
    and procuring the sexual services of a person under 18 (s. 286.1(2)).

[4]

At trial, the appellant called no evidence and
    his counsel made no submissions regarding his guilt or innocence.
The trial judge convicted the appellant.

[5]

After the conviction, the appellant applied to
    stay the proceedings based on entrapment. During the entrapment hearing, he
    testified that he was confused about the girls age and was not convinced she
    was under 18. He said he tried to call her to find out her age but could not
    reach her because the ad said to communicate only by text. He said he went to
    the hotel room to check it out and see for himself how old she was. The trial
    judge dismissed the application.

[6]

The appellant appeals the convictions and the
    entrapment decision.

Convictions

[7]

To support the conviction appeal, the appellant
    relies on the evidence he gave at the entrapment application. He says that
    pursuant to the Supreme Courts decision in
R. v. Morrison
, 2019 SCC
    15, [2019] 2 S.C.R. 3, the Crown failed to prove beyond a reasonable doubt that
    he believed the girl was under 18 or did not make reasonable efforts to verify
    her age.

[8]

The appellant relies on no authority to support
    the use of the entrapment application evidence on the conviction appeal.
    Instead he draws an analogy to a fresh evidence application. He did not make a
    fresh evidence application. Nor did he seek to comply with the requirements of
R.
    v. Palmer
, [1980] 1 S.C.R. 759.

[9]

The conviction appeal is to be considered solely
    on the record before the court at trial. He called no evidence and, based on
    the text message exchange, there was ample evidence to support the conviction. The
    trial judge did not err and there is no reason to overturn the conviction.

Entrapment

[10]

The day before this appeal was argued, this
    court released four decisions in a grouped appeal dealing with Project Rafael
    and entrapment.
[1]
The
    court found in those cases that there had been no entrapment.

[11]

The appellant argues that the basis for
    entrapment in his case is different. He submits that the police developed a
    scheme that prevented him from taking reasonable steps to verify the girls age.
    He could not call her, and he could not meet her in person to verify that she
    was over 18.

[12]

We do not accept this submission.

[13]

First, the design of the project did not deprive
    him of taking reasonable steps during the communication. During the
    communication, he made no inquiries about her age. He only inquired about her
    willingness to engage in a specific sex act.

[14]

Second, as the application judge found, once the
    communication was completed, the offence was complete. For that reason, the
    appellants argument that he should have been afforded the opportunity to
    verify her age by visually assessing or calling her must fail. The offences in
    which he was charged arise from the communications. By the time he got to the
    hotel, the offence had already been committed:
R. v. Drury
, 2020 ONCA
    502, at paras. 50-51.

[15]

The trial judges finding that there was no
    entrapment, and in particular no inducement, was consistent with the principles
    on entrapment articulated in
R. v. Mack
, [1988] 2 S.C.R. 903, and
R.
    v. Ahmad
, 2020 SCC 11.

[16]

The notice of appeal and factum raised the issue
    of ineffective assistance of counsel. However, this courts protocol was not
    followed, and no oral submissions were made in this regard.  We therefore treat
    this ground as abandoned.

[17]

The appeal is dismissed.

David
    Watt J.A.

M.L.
    Benotto J.A.

A.
    Harvison Young J.A.

[1]

R. v. Ramelson
, 2021 ONCA 328,
R. v. Jaffer
,
    2021 ONCA 325, R. v
. Harrina,
2021 ONCA 326,
R. v. Dare,
2021
    ONCA 327.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Xue, 2021 ONCA 308

DATE: 20210507

DOCKET: C68175

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Qin Xue

Appellant

Erin Dann, appearing as duty counsel

Avene Derwa, for the respondent

Heard: May 6 2021 by video conference

On appeal from the conviction entered on
    January 22, 2020 by Justice Laura Bird of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The Crown has filed an affidavit attesting to the fact that Mr. Xue is
    deceased, and asks that this appeal be dismissed as abated.  This appeal is
    dismissed as abated.