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CRIMINAL CODE OFFENCES - Disorderly houses, and gaming and betting - Procuring

Friday, March 26, 2021 @ 6:09 AM  


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Appeal by the accused from conviction for prostitution-related offences arising out of his role in the provision of sexual services by the complainant over four weekends. The appellant argued the trial judge erred in law by convicting the appellant under s. 286.3(1) of procuring simply because he facilitated the complainant in providing sexual services and did not give proper effect to the requirement that he exercised control, direction or influence over the movements of the complainant. He also argued that the trial judge convicted the appellant under s. 286.4 for advertising sexual services on a theory of liability disavowed by the Crown without giving the appellant the opportunity to make submissions. The complainant, 17, was romantically involved with R, a married man. She testified that she proposed engaging in sex work because she believed she needed money to help her family and R. The appellant was involved in drug trafficking with R. The complainant, R, and the appellant all testified that R asked the appellant for help. The appellant had a lengthy criminal record. The appellant picked the complainant up at her home and drove her to the appointments. The trial judge concluded that the appellant co-ordinated and provided the complainant with the means to provide sexual services for consideration. The trial judge found the appellant not guilty of the separate charge of recruiting, holding, concealing or harbouring the complainant, because there was no evidence that the appellant recruited the complainant, considering the complainant’s evidence that the appellant never restricted her movements and she always was free to leave the motels at any time she wished. The complainant testified that she gave R part of the moneys that she earned. No evidence was introduced that the appellant received any money from the complainant’s provision of sexual services. The appellant’s conviction for knowingly advertising an offer to provide sexual service for consideration by posting an advertisement on Backpage was based on the trial judge’s finding that the appellant permitted R, upon request, to use the appellant’s phone and Backpage account to advertise sexual services to be provided by the complainant for consideration and thereby aided R to commit an offence under s. 286.4. In its written closing submissions, however, the Crown argued that the appellant’s position that he allowed the complainant and R to use his Backpage account made no sense and that the appellant used his own Backpage account to post ads for the complainant.

HELD: Appeal allowed. New trial ordered. The trial judge’s finding that the appellant co-ordinated and provided the complainant with the means to provide sexual services for consideration did not, of itself, support the conclusion that the appellant exercised control, direction or influence over her movements within the meaning of those terms in s. 286.3(1) of the Code. The trial judge erred in determining the actus reus of the offence by focusing solely on what the appellant did, without regard to the nature of the relationship between the appellant and the complainant, and the impact of the appellant’s conduct on the complainant’s state of mind. The relationship between the complainant, R, and the appellant was complex. It was unclear that, having regard to the nature of the relationship between the appellant and the complainant and the impact of the appellant’s conduct on the complainant’s state of mind, the trial judge would have found the appellant exercised influence over the movements of the complainant. The trial judge erred by convicting the appellant under s. 286.4 on a theory of liability disavowed by the Crown without giving the appellant notice and the opportunity to respond to the appellant, which resulted in prejudice. The Crown disavowed the appellant’s theory of fact in its written submissions and, in doing so, implied that theory was exculpatory. The trial judge’s failure to provide notice and an opportunity to respond to the appellant could not be saved by the curative proviso.

R. v. Ochrym, [2021] O.J. No. 352, Ontario Court of Appeal, A. Hoy, G.T. Trotter and D. Paciocco JJ.A., January 27, 2021. Digest No. TLD-March222021010