Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220503 DOCKET: C69233

Pepall, van Rensburg and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Richard Aguilar Appellant

Counsel: Lorne Sabsay, for the appellant Amy Rose, for the respondent

Heard: April 28, 2022

On appeal from the conviction entered on February 28, 2020 and the sentence imposed on April 6, 2021 by Justice Amit A. Ghosh of the Ontario Court of Justice.

Reasons for Decision

1It was not contested at his trial that Richard Aguilar engaged in three text message conversations with an undercover officer (the “UC”) whom he believed to be a 14-year-old girl. Mr. Aguilar had responded to a Backpage.ca advertisement designed by the York Regional Police to attract persons interested in engaging in the child sex trade as part of “Project Raphael”. At the end of that trial, Mr. Aguilar was convicted and sentenced on two offences: (1) child luring relating to a person he believed to be under 16 years of age, contrary to s. 172.1(1)(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, and (2) communicating with a person under 18 years of age for the purpose of obtaining sexual services for consideration, contrary to s. 286.1(2) of the Criminal Code. He appeals his convictions alleging errors in the trial judge’s finding that the offences occurred and in the trial judge’s rejection of his innocent explanations.

2Mr. Aguilar also argues that the trial judge erred by imposing an “unfit” sentence of incarceration, which did not reflect parity with other Project Raphael sentences. He also submits that the trial judge erred by not giving due regard to COVID-19 considerations given Mr. Aguilar’s ill-health, or to the 13-month delay in sentencing that followed the findings of guilt.

3At the conclusion of oral argument, we dismissed Mr. Aguilar’s conviction and sentence appeals with reasons to follow. These are our reasons.

The Conviction Appeal

4Mr. Aguilar’s grounds of appeal with respect to the conviction resolve into four alleged errors.

5First, Mr. Aguilar argues, in effect, that the decision of the trial judge was unreasonable because he convicted Mr. Aguilar despite finding that the text messages were not incriminating. This ground of appeal must be dismissed because the trial judge made no such finding. What the trial judge concluded was that Mr. Aguilar “intended throughout to arrange to have sex for money with a child while avoiding any incriminating digital exchanges”. It is plain that the trial judge is not finding in this passage that there were no incriminating digital exchanges. What he is saying instead is that Mr. Aguilar wanted to arrange to have sex for money with a child and he wanted to do it while avoiding incriminating himself. Any hint of doubt about this disappears when this passage is read in the context of the balance of his Reasons for Judgment, in which the trial judge explained the steps Mr. Aguilar took to avoid incriminating himself and found unequivocally that the text messages were incriminating, including by finding as a fact: “The defendant eventually acknowledged that he was ‘all good’ with her stated age and exchanging $80 for half an hour of ‘regular’ sexual services with his ‘promise to wear a condom’”.

6Second, Mr. Aguilar argues that the trial judge misapprehended the evidence when he stated in his Reasons for Judgment, “As soon as he engaged the UC this second time, the defendant offered a specific price in exchange for sex.” In fact, the highest the evidence went was that during the third text message exchange, Mr. Aguilar accepted an offer to pay $80 in exchange for sex with a 14‑year-old girl. (The trial judge made a finding to this effect in the passage quoted above in paragraph 5 of these Reasons for Decision.) Even if the trial judge’s misstatement or mischaracterization of this evidence does represent a misapprehension when read in the context of the trial judge’s Reasons for Judgment as a whole, it does not give rise to a miscarriage of justice because it is immaterial. Whether Mr. Aguilar offered a specific price for sex or agreed to such an offer can make no difference to the outcome.

7Third, Mr. Aguilar raises multiple objections to the credibility findings that led the trial judge to reject the innocent explanation he provided for his conduct. Mr. Aguilar testified that after “discovering” that he was speaking to a 14-year-old girl, he resolved to meet with her not for the purpose of obtaining sexual services but to encourage her to seek counselling. He featured in his testimony a print-out displaying search results from 211Toronto.ca for counselling services for youth that he claimed to have had with him when he went to the hotel to meet the girl but which the police overlooked after his arrest.

8The trial judge rejected Mr. Aguilar’s testimony for multiple reasons, including:

• Mr. Aguilar’s first reaction upon his arrest was to resist the officers;
• The meeting that Mr. Aguilar arranged with the “young girl” was approximately 15 hours after he “discovered” she was a 14-year-old, a delay that is inconsistent with his claim that he was afraid she was being abused;
• Mr. Aguilar failed to call the police, as one would expect if he was concerned that the 14-year-old was being abused;
• This story is not consistent with the text conversations or with Mr. Aguilar’s surveillance conscious behaviour in using two cell phone numbers and programs to disguise his number during the text conversations;
• As would be expected from someone who intended to accept the arranged sexual services, he had a condom with him along with a large amount of cash; and
• Mr. Aguilar admitted to having lied to the police about having tried to help other young girls.

9In this context, the trial judge rejected Mr. Aguilar’s testimony, including his testimony that he had the counselling services print-out with him when he was arrested. Instead, the trial judge accepted the testimony of the officer who seized Mr. Aguilar’s belongings that if he had seen the print-out when he inventoried Mr. Aguilar’s belongings, he would have seized it. In the alternative, the trial judge reasoned that even if Mr. Aguilar had this document with him when he went to meet the 14-year-old girl, it would not operate as evidence of innocence because “such a document would have been consistent with [his] finding that the defendant was calculated, surveillance-conscious and deceitful throughout the investigation”. Clearly the trial judge did not believe that Mr. Aguilar’s possession of the document was inconsistent with his guilt.

10In substance, Mr. Aguilar’s attempt to challenge the trial judge’s decision to reject his innocent explanation consists of arguments as to why, on the evidence, the trial judge should have accepted Mr. Aguilar’s testimony, including the explanations he offered for some of the factors listed above. In doing so, Mr. Aguilar is effectively asking us to retry the case, which we cannot do. The trial judge was entitled to make the credibility determinations and findings that he did. This ground of appeal must be dismissed.

11Fourth, Mr. Aguilar argues that the trial judge reversed the burden of proof by convicting him because he rejected Mr. Aguilar’s defence evidence. This is not a fair characterization of the trial judge’s reasoning. On its face, the affirmative evidence of Mr. Aguilar’s interactions with the UC was highly incriminating and would prove Mr. Aguilar’s guilt beyond a reasonable doubt if no evidence emerged to expose reasonable doubt. Once the trial judge rejected Mr. Aguilar’s attempted explanation for that apparently incriminating evidence, he gave that remaining evidence the force it warranted and found Mr. Aguilar guilty, as he was entitled to do.

12We therefore reject the conviction appeal.

The Sentence Appeal

13We see no merit in the sentence appeal. The trial judge arrived at a fit sentence after expressly considering mitigating and aggravating factors, including Mr. Aguilar’s medical condition and the COVID-19 risk he was facing.

14The trial judge was entitled to treat as aggravating, in this case, Mr. Aguilar’s readiness to have sexual intercourse with a vulnerable 14-year-old child, despite being much older, after engaging in a sustained, surveillance conscious effort to arrange those sexual services. Although other defendants ensnared in Project Raphael received lesser sentences, those cases are distinguishable. We see no disregard of the principle of parity.

15Nor do we accept that the trial judge was required to reduce Mr. Aguilar’s sentence because of the impact the sentencing delay would have had upon him. Mr. Aguilar did not raise this argument at the time of sentencing or prepare a record upon which the impact of the delay on the sentence could be fully assessed. Moreover, it does not appear that Mr. Aguilar was in a hurry to be sentenced. His lawyer lost touch with him for four months and he sought and obtained approximately two further months of delay in the imposition of sentence to get his affairs in order.

16The sentence the trial judge imposed is entitled to deference. We will not interfere.

17We dismiss the sentence appeal.