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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant’s 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
Cronk, Tulloch and van Rensburg JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Juteah Downey
Appellant
Tyler R. Botten, for the appellant
Gillian Roberts, for the respondent
Heard and released orally: January 5, 2016
On appeal from the convictions entered on October 16, 2013 and the sentence imposed on January 6, 2014 by Justice A. Donald MacKenzie of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
1After trial by judge and jury, the appellant and his co-accused, R.B., were convicted of procuring K.S., who had just turned 14, to become a prostitute contrary to s. 212(1)(d) of the Criminal Code, R.S.C., 1985, c. C-46. The appellant was also convicted of aiding K.S. in engaging in prostitution for the purpose of gain under s. 212(1)(h). The appellant was sentenced to a global prison term of 30 months less 24 days. He appeals his convictions and seeks leave to appeal his sentence. The co-accused’s appeal is proceeding separately.
2The appellant raises one argument on his conviction appeal. He contends that the closing address by counsel for R.B. relied on matters not in evidence and prejudiced his right to a fair trial, and that the trial judge erred in failing to provide a sufficient corrective instruction or in refusing to declare a mistrial.
3We do not give effect to this ground of appeal.
4At trial, the central defence of both accused, neither of whom testified, was that the complainant was not worthy of belief and that she had not been procured into prostitution, but had decided to come to Ontario from Nova Scotia with the intention of working as a prostitute.
5The appellant’s counsel also suggested that if someone was acting as K.S.’s pimp, it was the person she identified in her evidence as “Stela”. For her part, in her closing argument, R.B.’s counsel invited the jury to conclude that R.B. was merely an escort working for the appellant, not an accomplice in the procurement of K.S. It is this aspect of the closing address that the appellant now challenges.
6In our view, this challenge must fail. While there was no direct evidence of the relationship between R.B. and the appellant, there was circumstantial evidence at trial from which the jury might have drawn the inference put forward by R.B.’s counsel.
7Moreover, even if R.B.’s counsel “crossed the line” in her closing argument by inviting the jury to accept a relationship between the appellant and R.B. not directly established by the evidence, we are not persuaded that this occasioned any miscarriage of justice. The trial judge gave a corrective instruction in his jury charge that, in all the circumstances, was adequate. Further, there was significant direct and circumstantial evidence that the appellant was running an escort agency and overwhelming evidence that he was acting as a pimp for the complainant. And the conviction of R.B. for the offence of procurement clearly indicates that the jury did not accept her counsel’s characterization of the nature of her role and the extent of her involvement with K.S.
8The conviction appeal is therefore dismissed. We do not grant leave to appeal sentence as the decision in R. v. Ijam, 2007 ONCA 597 is dispositive of the grounds raised by the appellant. The appellant’s counsel did not suggest otherwise at the appeal hearing.
“E.A. Cronk J.A.”
“M. Tulloch J.A.”
“K. van Rensburg J.A.”
