COURT OF APPEAL FOR ONTARIO
Paciocco, George and Dawe JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Daylo Robinson
Appellant
Daylo Robinson, acting in person
Sonya Shikhman, appearing as duty counsel
Jacob Millns, for the respondent
Heard: July 6, 2026
On appeal from the conviction entered by Justice Leslie Chapin of the Ontario Court of Justice on January 26, 2024.
REASONS FOR DECISION
1The appellant, Daylo Robinson, appeals his conviction for failing to comply with a release order, contrary to s. 145(5)(a) of the Criminal Code, by communicating with the complainant, who was the key witness in Mr. Robinson’s pending trial on human trafficking offences. It is not contested that Mr. Robinson was on bail release at the time of the offence and was subject to a condition not to communicate with her.
2The alleged communication occurred when two men, Daniel and Jesse Lavigne, approached the complainant and her boyfriend at a “trap house” where they were smoking drugs. One of the Lavignes, Jesse, was holding a phone that was connected through a video call to Mr. Robinson.
3It is also noncontentious that Jesse directed the call towards the complainant by turning the screen towards her.
4The complainant testified that she was shocked to see Mr. Robinson, who was on screen for five to ten seconds. When asked if he said anything or made any facial expressions, she replied, “Yeah. He smirked.” In cross-examination, she confirmed no words were spoken and added, “[H]e just smirked and looked at me like he usually does.” She testified that she then went with one or both of the Lavignes2 to record a video stating that Mr. Robinson was her boyfriend, not her pimp, which she testified was not true.
5The Crown theory was that threats were uttered by one or more of the Lavignes to get the complainant to make the video and that Mr. Robinson was, by implication, complicit. Mr. Robinson and the Lavignes, who were co-accused with him at the trial, were acquitted of charges of intimidating a witness and obstructing justice after the trial judge had a reasonable doubt about whether the complainant was threatened, given inconsistencies between the testimony of the complainant and her boyfriend about what was said, and their levels of intoxication. However, the trial judge convicted Mr. Robinson of the s. 145(5)(a) offence of breaching the terms of his release order.
6Mr. Robinson is appealing his s. 145(5)(a) conviction. He was assisted at the hearing by pro bono duty counsel. Duty counsel and Mr. Robinson emphasize that it was Jesse Lavigne who turned the phone to the complainant and there was no evidence that Mr. Robinson directed this, requested it or knew it was going to happen. They also stress that there was no evidence that Mr. Robinson said anything while the phone was turned to the complainant. They argue that the trial judge rendered an unreasonable decision unsupported by the evidence that is inconsistent with the reliability findings she made, and that she failed to provide sufficient reasons. They also argue that the trial judge erred in law by failing to apply the specific intent requirement that the communication must be knowing or reckless. In his factum, Mr. Robinson adds that the trial judge erred in law by mistakenly concluding that the onus was on him to turn around or turn off his phone, and by failing to make findings capable of supporting party liability. He asks us to substitute an acquittal or, alternatively, order a new trial.
7We do not accept any of the grounds of appeal. We recognize, as the Crown did in submissions before us, that the reasons for judgment relating to the breach charge are unusually brief and that it would have been preferable had the trial judge elaborated on her reasons, even in the busy court in which she was sitting. However, we are persuaded that when the reasons are read contextually and functionally in the context of the evidence and the submissions, her path to conviction can be understood and subjected to meaningful appellate review: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 28, 50.
8At the outset of her decision, the trial judge identified the material offence as “communicating with” the complainant. She is presumed to know the law, and there is no basis for concluding that she failed to understand that the alleged communication had to be intentional. Before convicting Mr. Robinson, the trial judge made an explicit finding that she believed the complainant “when she said she saw Mr. Daylo Robinson on the screen of the cell phone that was directed her way and that he smirked at her” (emphasis added). Although it could have been expressed more explicitly, this was a finding of an intentional act by Mr. Robinson directed at the complainant. It is a matter of common sense that when a facial expression is directed at someone, it is inherently a form of communication. That is particularly so in this case, given that the smirk occurred on the eve of the human trafficking trial in which Mr. Robinson was the accused and the complainant was a key witness.
9The trial judge did not make any palpable or overriding errors in coming to this conclusion, and it is not unreasonable. It is fully supported by the complainant’s testimony. It was not contested that the call took place or that the complainant knew and could readily recognize Mr. Robinson. No issue was taken with the five to ten second estimate she gave of the amount of time his image was in front of her and the phone camera was pointed at her. She testified that the facial expression he made, a smirk, was “at her”, and that she was familiar with this look as one which he had given her many times before.
10In context, it was open to the trial judge to be satisfied beyond a reasonable doubt that the smirk was an intentional communication. She was also entitled to infer that Mr. Robinson knew that the complainant could see him. Mr. Robinson’s image was on the call; the phone camera would have been pointed at the complainant; video calls typically display the participants; his image remained on the call the entire time the phone was in front of her; and it was during this event that he “smirked”, an inherently communicative facial expression. The trial judge was entitled to conclude that the only reasonable inference was that Mr. Robinson knew that the camera and screen on Mr. Lavigne’s phone were pointed at the complainant, and that he was intentionally communicating with her in violation of the release order.
11There is no inconsistency in the trial judge’s decision to believe the complainant’s evidence about what transpired during the video call after finding her testimony about the threats to be unreliable. It is clear when the reasons are read in their entirety that the trial judge had a reasonable doubt relating to the nature of the threats primarily because the boyfriend’s evidence differed from the complainant’s evidence on what the Lavignes said. It was open to the trial judge to find that these reliability problems did not extend to the material parts of the complainant’s evidence about the video call, which were uncontradicted by any other evidence. Indeed, she and her boyfriend were generally consistent regarding how Jesse Lavigne pointed his phone at them and showed them Mr. Robinson on screen. The reasons for the discrepancy in the results are apparent.
12The trial judge did not reverse the burden of proof. She identified the burden correctly at the outset of her decision and the comment she made during argument that the onus was on Mr. Robinson to leave when the video call was put in front of the complainant was not a finding on the onus of proof. It was an observation that even if he was surprised to see the complainant, he should not have stayed on the call as long as he did, knowing about the release order.
13There was no need for the trial judge to address party liability. She convicted Mr. Robinson as a principal, not as an aider or abettor, for communicating with the complainant when they were connected on the video call. The absence of evidence that he arranged the call, and his lack of control over the phone, are not fatal gaps in the evidence. The offence only occurred after they were already connected.
14The appeal is dismissed.
“David M. Paciocco J.A.”
“J. George J.A.”
“J. Dawe J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
- The complainant initially testified that Jesse Lavigne was present during the filming of the video but later said that only Daniel Lavigne was present.