Her Majesty the Queen v. Patterson [Indexed as: R. v. Patterson]
64 O.R. (3d) 275
[2003] O.J. No. 1353
Docket No. C34572
Court of Appeal for Ontario
MacPherson, Simmons and Gillese JJ.A.
April 23, 2003
Criminal law -- Forcible confinement -- Accused charged with kidnapping and unlawful confinement -- Trial judge not erring in his charge to jury when he stated that it was not necessary for Crown to prove that restraint of complainant occurred for entire period covered by indictment.
Criminal law -- Kidnapping -- Accused charged with kidnapping and unlawful confinement -- Trial judge not erring in his charge to jury when he stated that it was not necessary for Crown to prove that restraint of complainant occurred for entire period covered by indictment.
Criminal law -- Sentence -- Principles -- Accused lawyer terrorized, abused and humiliated 19-year-old woman for approximately one week and forced her to engage in prostitution -- Accused convicted of kidnapping, unlawful confinement and other offences -- Sentence of seven years' imprisonment not unreasonable despite accused's lack of criminal record.
Criminal law -- Trial -- Charge to jury -- Theory of defence - Charge to jury reviewing position of defence before reviewing position of Crown although Crown addressed jury first -- Accused objecting to structure of charge -- Trial judge re- charging jury that order in which he presented parties' positions was irrelevant -- Re-charge curing any possible prejudice.
Criminal law -- Trial -- Evidence -- Counsel for co-accused raising issue of complainant's demeanour during taped police interview on cross-examination of complainant -- Counsel playing portions of videotape and making suggestions about other parts of interview that he did not show jury -- Trial judge not erring in permitting Crown to play complainant's entire videotaped statement to police or in permitting videotape to go to jury room once deliberations began.
Criminal law -- Trial -- Jury -- Challenge for cause -- Trial judge not instructing triers of challenge for cause that they had to decide question on balance of probabilities or that decision had to be unanimous -- Trial [page276] judge telling triers they had to decide issue of bias to their "satisfaction" and that they had to make joint decision -- Trial judge adequately instructing triers on nature of their task.
The accused, a lawyer and member of the Ontario bar, was charged with various offences, including kidnapping, unlawful confinement, procuring the complainant to have illicit sexual intercourse, living off the avails of prostitution, and uttering threats. The complainant alleged that after she gave a statement to the police against a pimp, the accused and two co- accused claimed to be the pimp's associates, kidnapped her, held her against her will and forced her into street prostitution. She claimed that the accused dominated her with threats and humiliation, burned her arm with a cigarette, and repeatedly threatened to kill her mother and young brother. She was taken to a strip club by one of the co-accused and left there. She called 911 from a pay phone, hung up and ran outside, saw a police car, jumped in and asked the police for help. The Crown's case at trial rested on the complainant's testimony bolstered by confirmatory evidence. None of the accused testified or called any evidence, and none alleged any motive to fabricate on the part of the complainant. The defence theory was that the complainant was lying. The accused was convicted on all except two counts. He was sentenced to seven years' imprisonment. He appealed from both the conviction and the sentence.
Held, the appeal should be dismissed.
The trial judge told the triers on the challenge for cause that they had to decide to their "satisfaction" whether the prospective jurors would try the accused without bias or prejudice and according to the evidence. Although it would have been preferable had he referred to the standard as "on a balance of probabilities", the task the triers had to perform was clear. The triers were told that they had to make a "joint decision" and would have understood that they had a right to disagree. On each occasion that there was a new set of triers, the trial judge made sure that the new triers understood their task; he was not required to repeat the entire instruction each time. Each trier would have appreciated the nature and importance of the task to be performed and the procedure to be followed.
The trial judge fairly put the position of the defence. The charge to the jury reviewed the defence position in a point/ counterpoint fashion, reminding the jury of the evidence it might look to in answer. This technique, which was used for his review of the Crown's theory as well, was helpful in focusing the issues for the jury and did not affect the fairness of the charge. Although Crown counsel addressed the jury first, the trial judge reviewed the position of the defence before reviewing the position of the Crown. After the charge, the accused objected to the structure of the charge. The trial judge responded with a re-charge in which he told the jury that the order of his presentation was totally irrelevant. This re- charge was sufficient to cure any prejudice that might have occurred as a result of the order in which he reviewed the positions of the defence and the Crown.
On cross-examination of the complainant, counsel for a co- accused raised the issue of the complainant's demeanour during a videotaped police interview. He played portions of the tape and made suggestions about other parts of the interview that he did not show the jury. In the circumstances, the trial judge did not err in permitting the Crown to play the entire videotaped statement for the jury. It was necessary for the jury to see the whole interview to make a proper assessment of the complainant's demeanour and to consider the merit of the suggestions that defence counsel had put to her about her demeanour. It was open to the trial judge to permit the videotape to go to the jury room during deliberations. [page277]
The trial judge did not err in his charge to the jury on kidnapping and forcible confinement when he stated that it was not necessary for the Crown to prove that restraint of the complainant occurred for the entire period covered by the indictment, only that she was confined for a significant amount of time within that period.
The seven-year sentence was not excessive, despite the fact that the accused, a lawyer, did not have a criminal record given that his antecedents paled in comparison to the need for denunciation and general deterrence. The accused was the leader of the trio that terrorized the 19-year-old complainant. Over the course of a week, the accused systematically abused and humiliated her. The abuse ended only because she fled and reported his abuse to the police. The trial judge's reasons disclosed no error in principle.
APPEAL by an accused from a conviction for kidnapping and other offences and from a sentence.
Cases referred to R. v. Douglas (2002), 2002 38799 (ON CA), 62 O.R. (3d) 583, 170 C.C.C. (3d) 126 (C.A.); R. v. Gratton (1985), 7 O.A.C. 190, 18 C.C.C. (3d) 462 (C.A.) [Leave to appeal to S.C.C. refused (1985), 18 C.C.C. (3d) 462n]; R. v. Kotch (1990), 1990 ABCA 348, 61 C.C.C. (3d) 132 (Alta. C.A.); R. v. McLean (2002), 2002 11684 (ON CA), 170 C.C.C. (3d) 330 (Ont. C.A.); R. v. Mullins-Johnson, 1998 831 (SCC), [1998] 1 S.C.R. 977, 38 O.R. (3d) 574n, 226 N.R. 365, 124 C.C.C. (3d) 381, affg (1996), 1996 1214 (ON CA), 31 O.R. (3d) 660, 112 C.C.C. (3d) 117 (C.A.) [Leave to appeal to S.C.C. refused (1997), 218 N.R. 160n]; R. v. Pleich (1980), 1980 2852 (ON CA), 55 C.C.C. (2d) 13, 16 C.R. (3d) 194 (Ont. C.A.); R. v. Varcoe (1996), 1996 1129 (ON CA), 104 C.C.C. (3d) 449 (Ont. C.A.)
Alan D. Gold, for appellant. Robert Kelly, for respondent.
The judgment of the court was delivered by
1GILLESE J.A.: -- The appellant was tried by a judge and jury on a 12-count indictment alleging various acts of confinement, procuring J.G. to have illicit sexual intercourse, living off the avails of prostitution and uttering threats. The appellant was convicted on all counts except counts 11 and 12, on which he was acquitted. The co-accused were each convicted on those counts on which they were charged, namely, counts 1 through 6.
2On June 21, 2000, the appellant was sentenced to a total term of seven years' imprisonment. The appellant appeals both convictions and sentence.
Overview
3The complainant, J.G., alleged that after she gave a statement to the police against a pimp, Mark Anthony Burton, the appellant and two co-accused claimed to be Burton's associates, kidnapped her, held her against her will and forced her into street prostitution. She alleged that the confinement extended [page278] over a one-week period in the late summer of 1997. J.G. was 21 years old at the time of trial.
Facts
4In July of 1997, J.G. went to Toronto to visit a friend. She met Burton, who put her out on the street as a prostitute in the area of Jarvis and Church streets. This area is known as the "track". While on the street, J.G. found a police officer and told him what had happened. The police located Burton, arrested him and took him into custody. Burton was found to be in possession of J.G.'s identification. J.G. gave a statement under oath about Burton to officers of the Juvenile Task Force. One of the officers, Officer Frosch, gave her his business telephone number and pager number. While at the police station, J.G. telephoned her mother -- who lives in Barrie, Ontario -- and told her what had happened. The identification that Burton had that belonged to J.G. included her mother's address, and J.G. claimed that she was worried about her mother's safety.
5The police then drove J.G. back to Barrie, where she had been working as a nanny.
6Within a few hours of returning to Barrie, J.G. decided to go back to Toronto. When she got to Toronto, she telephoned a man named Tony. Tony had approached J.G. while she was working on the track and given her his business card. Tony offered J.G. a job at his escort agency and a place to stay. J.G. conceded that she knew that the work was a form of prostitution.
7J.G. immediately started work at the escort agency, answering the telephone and booking dates for "the girls" to meet with customers.
8During the period that she worked for Tony, J.G. spoke to Officer Frosch but did not tell him or any other officer involved in the Burton case that she was working at the escort agency. Burton's trial was set to begin on October 16, 1997.
9While working at the escort agency, J.G. met Penny Roberts. J.G. told Roberts that she wanted to get a cellular phone but needed to have a credit card. Roberts told her she knew a banker who could help J.G. get a VISA card.
10On Sunday, August 31, 1997, J.G. went with Roberts to a restaurant at the Eaton Centre. J.G. thought she was going to a brunch meeting with a customer of Roberts' who was a banker. She thought she would trade sex with the banker for a VISA card.
11At the restaurant, J.G. was introduced to Royce Briscoe and the appellant. The appellant was referred to as "Gabe". According to J.G., the appellant told her that they were associates of Burton, [page279] that her life was no longer hers, that she owed it to them and that, because of Burton, she would have to choose from whom she wanted to earn it. J.G. understood this to mean that she owed them her life.
12J.G. was told to pick up her belongings from Tony's apartment and go to Roberts' house to await the arrival of Briscoe and the appellant. J.G. understood that the appellant and the co-accused were trying to force her into prostitution. She did not want to go with them. She made no attempt to leave the restaurant, use a telephone or alert anyone that she needed help.
13Later that day, while at Roberts' house and while all three accused were present, the appellant told J.G. that she would have to see the police or a lawyer to change her statement about Burton in order to get him off his charges.
14In the days that followed, the appellant and his accomplices forced the complainant to work as a prostitute. They controlled her movements and they took her money. They worked together. Royce Briscoe acted as the complainant's pimp when she worked the streets. She lived with Briscoe in his apartment. He watched over her, told her how to attract customers and took her money. J.G. gave Briscoe $200 earned from her first act of prostitution while with him and the following day, when her regular customer paid her $1,000 for oral sex and intercourse, she gave that money to Briscoe as well.
15Penny Roberts was responsible for direct supervision of the complainant. She worked the streets with her, took money from her, and drove her from place to place.
16The appellant oversaw everything through face-to-face meetings and regular phone calls with Roberts.
17The appellant dominated the complainant with threats and humiliation. He told her he owned her forever. In an incident at Roberts' home, he made her strip naked and kneel in front of him while he threatened her with torture. He burned her left forearm with a cigarette. He told her he would cut off her arms and legs and burn them so she wouldn't bleed to death. He said he would cut out her tongue and poke out her eardrums so his voice would be the last she heard. He said he would leave her on life support until she was 65 or she died. He made repeated threats to kill the complainant's mother and brother, who was then between ten and 12 years of age. The appellant told J.G. that he knew where her mother lived but made her write down the address anyway and show it to him, because he wanted to see if she would lie to him.
18In a test of her loyalty, the appellant made her lick Roberts' anus. She passed the test and was told that she would be [page280] sent to strip at the Dynasty strip club. Had she failed the test, the appellant told her she would have been shipped out to sit in a room somewhere, that she would have had to prostitute herself under threat of being beaten and that she would never see anyone again.
19Roberts drove J.G. to the strip club and left. J.G. performed some dances. She thought that two men were watching her. When they left and she believed that no one was watching her, she tried to arrange for a cab to pick her up. She did not have enough money for a cab, so she called 911 from a pay telephone. She was unable to give her location so she hung up. She ran outside and saw a police car. It was approximately 9:00 p.m. on Saturday, September 6, 1997 when Durham police officers Brown and Doucette picked her up. She was clad in a G-string and bra, a black blazer and high heels. She jumped into the back of their cruiser, slammed the door and said "Go, go, get me out of here". She was frantic. She told the officers that she had been kidnapped, forced to work the streets as a prostitute and that this was her first chance to get away. The officers took her to 17 Division where she made a statement. On the way, the police officers received word of the 911 call that J.G. had placed minutes before from a pay phone outside the club. At the police station, J.G.'s main concern was to make sure someone told her mother and brother that they might be in danger. She believed they were in danger because of the threats that the appellant had made.
20The Crown's case at trial rested on the complainant's testimony bolstered by confirmatory evidence.
21None of the accused testified or called any evidence. None alleged any motive to fabricate on the part of the complainant. The defence theory was that the complainant was lying. The defence relied on two main points: first, that the complainant's testimony only accounted for four of the seven days covered by the indictment and, second, that she had not availed herself of any of a number of opportunities to escape or seek help until the episode in front of the Dynasty strip club.
22The Crown's confirmatory evidence included a number of things. The first was J.G.'s call to 911.
23Another confirmatory piece of evidence came from identification of key locations. Within hours of her flight from the strip club, J.G. directed police officers to the eighth floor at 298 Jarvis Street in Toronto. She pointed out unit 802 as the apartment that had been used as a base while she worked the streets under Briscoe's direct control.
24A concierge at 298 Jarvis Street testified that in late August 1997, the appellant arrived in the lobby with the key to [page281] apartment 802 and said he owned the unit. The concierge had a number of dealings with the appellant about unit 802. In early September 1997, the appellant introduced Royce Briscoe to the concierge as his cousin, Royce Briston, and said Briston would be staying in apartment 802. However, mail arrived at the building addressed to Royce Briscoe.
25The concierge confirmed that the accused Briscoe was a tenant of apartment 802 and that he saw him coming and going almost every day. Another concierge testified that the accused Briscoe lived in unit 802 and said that when he met Briscoe in early August, 1997, Briscoe introduced himself as Royce Patterson and said he would be moving into apartment 802.
26The sign-in book at the front desk of 298 Jarvis Street showed that on September 6, 1997, the day the complainant escaped from Dynasty, Roberts signed in at 10:45 a.m. for apartment 802.
27Land Registry Office documents showed that on December 23, 1996, Wayne Patterson purchased 298 Jarvis Street, Suite 802. His solicitor was listed as G.W. Gabriel Patterson. When Royce Briscoe was arrested in unit 802, a suitcase that had clothing belonging to the complainant was at the apartment.
28The complainant also directed police officers to a house in the Oshawa area at 1439 Nash Road in Courtice, Ontario. She identified the property as Roberts' home. Land Registry Office documents showed that on December 22, 1993, Roberts purchased the property and her solicitor was shown as G.W. Gabriel Patterson.
29Additional confirmatory evidence came from cell phone records and physical evidence in the form of a burn mark on the complainant's left forearm and some slight red or brown colouring under her neck.
Conviction Appeal Issues
30The appellant alleges seven errors, which give rise to the following issues.
Did the trial judge err in his instructions to the triers of the challenge for cause?
Did the trial judge fail to put the position of the defence, and the evidence relied on in support of that position, to the jury in a fair manner?
Did the trial judge err in permitting the Crown to play to the jury, the complainant's entire September 7, 1997 videotaped statement to the police? [page282]
Did the trial judge err in permitting the videotape to go [to] the jury once deliberations began?
Did the trial judge err in instructing the jury that in order to convict of kidnapping or forcible confinement, it was not necessary for the Crown to prove that the restraint of the complainant occurred over the entire period from August 31 to September 7, 1997?
Did the trial judge err in instructing the jury that the complainant could be found guilty of living on the avails of prostitution?
Did the trial judge err in instructing the jury on the offence of attempt to obstruct justice by neglecting to instruct them that the offence requires a corrupt attempt to obstruct, pervert or defeat the course of justice?
Analysis
Issue 1 -- Challenge for cause
31The appellant submits that the trial judge erred in instructing the triers of challenge for cause by failing to tell them that they had to decide the question on a balance of probabilities, the decision had to be unanimous and, if they could not agree within a reasonable time, they should say so and retire to the jury room. Further, the appellant argues that only some of the jurors were properly instructed.
32The trial judge explained the challenge for cause process in general terms to the panel as a group and informed the panel that they would see how the process worked. He then ensured that the first jurors called understood the nature of the task and the procedure that they were to follow. He told them that their function was to decide, to their satisfaction, whether the prospective juror would try the accused without bias or prejudice and solely on the evidence. While it would have been preferable had the trial judge referred to the standard as "on the balance of probabilities" instead of "to your satisfaction", the task that they had to perform was clear. See R. v. McLean (2002), 2002 11684 (ON CA), 170 C.C.C. (3d) 330 (Ont. C.A.), at p. 333.
33The trial judge did not use the word "unanimous" when instructing the triers, nonetheless, he made it clear to the triers that they had to make a joint decision. He told the first triers to decide the issue "between the two of you". Six times during the selection process he told the triers to confer with one another before reaching their decision. There is no doubt that the triers [page283] understood that they had the right to disagree and, in fact, at one point they did disagree.
34On each occasion that there was a new set of triers, the trial judge made sure that the new triers understood their task. While he did not repeat his entire instruction each time, he was not required to do so. All that is required is that each trier appreciates the nature and importance of the task to be performed and the procedure to be followed. See R. v. Douglas (2002), 2002 38799 (ON CA), 62 O.R. (3d) 583, 170 C.C.C. (3d) 126 (C.A.), at p. 589 O.R., pp. 133-34 C.C.C. In this case, by repeating certain aspects of his instruction, referring to previous instructions, and questioning the triers to ensure they understood the task, the trial judge satisfied this requirement.
35The trial judge's instructions were adequate. They were clear, fair and attracted no objections from any of the three defence counsel.
Issue 2 -- Position of the defence
36The appellant submits that the trial judge failed to put the position of the defence and the evidence relied upon in support of that position to the jury in a fair manner.
37This was a case of three accused charged jointly with numerous offences arising out of a series of connected events spanning a period of days. Many of the offences had essential elements that overlapped. The Crown's case rested almost entirely on one witness, the complainant. There was no defence evidence. The position of each accused was the same: the complainant was lying. The case for the defence rested primarily on points made in cross-examination. Before the trial judge gave the charge to the jury, the jury heard detailed addresses by four counsel in which they were reminded of all relevant factual points in each accused's favour.
38It is within this context that the charge as a whole must be assessed. The trial judge's task was to explain the elements of the offences to the jury and to relate the evidence to each count. He was required, also, to outline the positions of the parties in a way that was understandable and balanced. He was not obliged to follow any particular structure or formula nor was he required to mention every point on which each party relied. His duty was to present the case for all parties in an even-handed and fair way. R. v. Varcoe (1996), 1996 1129 (ON CA), 104 C.C.C. (3d) 449 (Ont. C.A.), at pp. 453-54; R. v. Mullins- Johnson (1996), 1996 1214 (ON CA), 31 O.R. (3d) 660, 112 C.C.C. (3d) 117 (C.A.), at pp. 665-66 O.R., pp. 122-23 C.C.C.
39The trial judge divided his charge into three parts. In the first, he reviewed the general principles applicable in criminal [page284] trials. Second, he gave an explanation of the essential elements of each of the offences. For each count, he outlined the relevant evidence. In reviewing the elements of each offence, the trial judge reminded the jury of the evidence upon which they could return guilty verdicts. He was not obliged to mention every point relied on by each of the accused at each stage of his count-by-count review of the 12 charges. The trial judge referred repeatedly to the burden and standard of proof and reminded the jury that he would deal with the question of credibility later in his instructions.
40In the third section of the charge, the trial judge outlined the positions of the parties. He began with a review of the defence position, a task that covers approximately 14 pages of transcript. He then summarized the Crown's position in approximately six pages of transcript.
41The appellant argues that the trial judge should not have reviewed the defence position in a point/counterpoint fashion, reminding the jury of evidence it might look to in answer. This technique, which was used for his review of the Crown's theory as well, was helpful in focusing the issues for the jury and did not affect the fairness of the charge.
42Although Crown counsel addressed the jury first, the trial judge reviewed the position of the defence before reviewing the position of the Crown. After the charge, the appellant objected to the structure of the charge, submitting that, among other things, the trial judge had "sandwiched" the defence between two reviews of the Crown's position. The trial judge responded with a re-charge in which he told the jury that the order of his presentation was "totally irrelevant". This re-charge was sufficient to cure any prejudice that might have occurred as a result of the order in which he reviewed the positions of the defence and the Crown.
43In reviewing the position of the Crown, the trial judge did not refer to the evidence relied on by the defence in rebuttal. In my view, this does not lead to the conclusion that the charge was not balanced. The trial judge's obligation was to present the position of the defence even-handedly and fairly and he did so.
44As a whole, the charge was understandable, balanced and fair and gave the jury everything that it needed in order to return a just verdict.
45The charge to the jury read as a whole and in context makes it clear, in my view, that the trial judge's presentation of the position of the defence was fair. Accordingly, I would not give effect to this ground of appeal. [page285]
Issues 3 and 4 -- The videotaped statement
46The appellant submits that the trial judge erred in permitting the Crown to play to the jury, the complainant's entire September 7, 1997 videotaped statement to the police. The appellant says that it was prejudicial to play the entire videotape in order to rebut the cross-examination about demeanour conducted by counsel for the co-accused Roberts and that the prejudice was compounded when the learned trial judge gave the jury an instruction about the use of prior statements to show consistency.
47The appellant argues that it was a further error to permit the videotape to go to the jury room once deliberations began.
48The Crown played the videotape during its re-examination of the complainant, and its admissibility should be reviewed in this context. The trial judge was correct to allow the Crown to re-examine the complainant by putting to her three specific passages from her videotaped statement. On cross-examination, counsel for Roberts suggested that the complainant had told the Durham police officers three things that were inconsistent with her trial testimony. The complainant denied counsel's suggestions. In those circumstances, it was appropriate for the Crown to elicit that, within a few hours of speaking with the Durham police and when she had her first opportunity to give a formal statement on video, the complainant's assertions on each of the three points were consistent with her trial testimony. The evidence was relevant to the complainant's credibility, particularly on the issue of whether she had told Durham police officers what defence counsel suggested she had said.
49In my view, the trial judge properly exercised his discretion to permit the Crown to play the entire tape before the jury during re-examination. On cross-examination, counsel for Roberts had raised the issue of the complainant's demeanour during the police interview. He played portions of the tape and made suggestions about other parts of the interview that he did not show the jury. It was necessary for the jury to see the whole interview to make a proper assessment of the complainant's demeanour and to consider the merit of the suggestions that defence counsel had put to her about her demeanour. Without playing the whole videotape, the jury would have had an incomplete, inaccurate, and potentially unfair picture of the complainant's demeanour.
50Counsel for Roberts joined in the Crown's request that the entire videotape be played for the jury. Counsel for the appellant raised an objection to the playing of the tape but her real concern was that the jury receive limiting instructions. The trial judge [page286] gave those instructions, both mid-trial and in his charge to the jury, in terms that are unobjectionable.
51It was open to the trial judge to permit the videotape to go to the jury room during deliberations. This was a matter within his discretion and there is no basis to suggest he erred in law. The trial judge was not required to depart from the general practice of giving the jury all exhibits whenever feasible. He heard submissions on the issue and declined to adopt the suggestion that the video go to the jury only if they requested it. He was entitled to reach this decision. The trial judge was correct in his assessment that any concern about potential misuse of the video could be avoided by clear cautionary instructions and he gave those instructions. R. v. Pleich (1980), 1980 2852 (ON CA), 55 C.C.C. (2d) 13, 16 C.R. (3d) 194 (Ont. C.A.), at pp. 32-33 C.C.C.
52Thus, these grounds of appeal are dismissed.
Issue 5 -- Kidnapping and unlawful confinement
53The appellant argues that the trial judge erred in his charge to the jury on kidnapping and forcible confinement when he stated that it was not necessary for the Crown to prove that restraint of J.G. occurred for the entire period from August 31 to September 7, 1997.
54The trial judge correctly instructed the jury that the Crown was not required to prove that the restraint of the complainant lasted during the entire period covered by the indictment. It was sufficient to show that the confinement lasted for a significant period of time: R. v. Gratton (1985), 18 C.C.C. (3d) 462, 70 A.C. 190 (C.A.), leave to appeal to S.C.C. refused (1985), 18 C.C.C. (3d) 462n.
55The Crown was not obliged to prove that J.G.'s confinement lasted during the entire period covered by the indictment. Its burden was to prove each element of each offence. Time is not an essential element of this charge.
56The evidence amply supports the verdicts on these counts.
57Accordingly, I would not give effect to this ground of appeal.
Issue 6 -- Living on the avails of prostitution
58The appellant argues that the trial judge erred in instructing the jury that the appellant could be found guilty of living on the avails of prostitution because, he says, there was no evidence that the appellant had received any of J.G.'s earnings. I disagree.
59The verdict on this count is fully supported by the evidence that the three accused, acting in concert but with the appellant [page287] as leader, controlled the complainant's movements and forced her to act as a prostitute for their financial benefit.
60On the evidence, it was open to the jury to find the appellant guilty of living on the avails of prostitution as a party to the offence. While under the appellant's control, J.G. gave Briscoe $200 earned for her first act of prostitution and $1,000 the next day when her regular customer paid her for oral sex and intercourse. Alternatively, the jury was entitled to find the appellant guilty of the offence when Roberts received money from the complainant on the basis that they had acted in concert.
61The trial judge did not mention the appellant's potential liability as a party to Briscoe's receiving money from the complainant but that omission could only have inured to the appellant's benefit.
62Thus, I would dismiss this ground of appeal.
Issue 7 -- Attempt to obstruct justice
63The appellant argues that the core of the offence of attempting to obstruct justice is a corrupt attempt and that the trial judge erred in his instructions to the jury by failing to state that expressly.
64No objection to the trial judge's charge on this offence was voiced by any of the four trial counsel.
65A review of the trial judge's charge to the jury on this offence makes it clear that the jury would have correctly understood that the offence was made out if they found that the appellant had said or done anything in an attempt to get the complainant to withdraw or change the statement she had made to the police about Burton.
66The evidence before the jury amply supported a finding that the appellant made a corrupt attempt to obstruct justice when he tried to get the complainant to change the statement she had made against Burton: R. v. Kotch (1990), 1990 ABCA 348, 61 C.C.C. (3d) 132 (Alta. C.A.), at p. 136. Accordingly, I would dismiss this ground of appeal.
Sentence Appeal
67The appellant argues that the sentence of seven years is harsh, excessive and falls outside the acceptable range for an offender with no prior criminal record. I do not agree.
68At sentencing, the Crown sought incarceration for a period of between eight and ten years. The appellant submitted that a sentence in the range of four to six years would be appropriate. The trial judge imposed seven years. [page288]
69The appellant was a lawyer and member of [the] Ontario bar who, acting in concert with a prostitute and another pimp, descended on a 19-year-old woman and terrorized her for approximately a week. There is no need to dwell on the gravity and seriousness of the offences for which the appellant was convicted nor his role as the leader of the trio. Suffice to say that over the course of the week, he systematically abused and humiliated the complainant. His reign of terror only ended when the complainant fled to the police because she was afraid that the appellant was going to send her away and force her to prostitute herself under the threat of beatings. The appellant's first offender status pales in comparison with the need for denunciation and general deterrence.
70The trial judge heard thorough sentencing submissions. He delivered detailed reasons that demonstrate that he fully considered the offences, the offender and the relevant sentencing principles. It cannot be said that the sentence is demonstrably unfit.
Disposition
71In the result, I would dismiss the appeal against convictions. I would grant leave to appeal the sentence and dismiss the appeal.
Appeal dismissed.
