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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2017-02-17

Docket: C62099

Panel: MacPherson, Rouleau and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

R.S. Appellant

Counsel:

• R.S., in person
• Delmar Doucette, as duty counsel
• Frank Au, for the respondent

Heard: February 9, 2017

On appeal from: the conviction entered on December 18, 2015 and the sentence imposed on May 2, 2016 by Justice Catherine D. Aitken of the Superior Court of Justice.

Decision

By the Court:

Conviction Appeal

[1] The appellant was convicted of human trafficking, receipt of material benefits, withholding documents to facilitate trafficking, assault, uttering a threat, and breach of undertaking. He received a global sentence of five years on the trafficking charge and concurrent sentences of six months to three years on the other offences. The global sentence was reduced by 757 days for pre-sentence custody, resulting in a net sentence of 35 months.

[2] The appellant appeals from the convictions and the sentence.

Credibility and Conviction Analysis

[3] The principal evidence against the appellant was the complainant's testimony. The complainant ("C") was an exotic dancer and escort who worked in the Ottawa area. She met the appellant in May 2013. She was 19 years old. Between May and September, she worked as an escort, under the appellant's direction, in Ottawa, Toronto, London and Niagara. She claimed that the appellant beat her regularly and kept for himself almost all the money she earned from her escort services.

[4] In her judgment, the trial judge expressed reservations about C's credibility. She listed five specific aspects of C's testimony that caused her concern and then said:

These observations lead me to conclude that Ms. C. exaggerated her evidence in a number of respects to increase the perception that she was a victim throughout her interactions with Mr. S. and that he controlled all of her behaviour over this entire period through violence and the threat of violence.

[5] The appellant contends that the substance and tone of the trial judge's criticisms of C's credibility are inconsistent with the convictions on six of the counts in the indictment. His position, as expressed by duty counsel, is that there is a "logical non sequitur" between the trial judge's criticism of C's credibility and the six convictions.

[6] For several reasons, we do not accept this submission.

[7] First, the trial judge is entitled to accept some, all or none of a witness' testimony. That is precisely what the trial judge did in this trial. She accepted a great deal of C's testimony about the events during her four month relationship with the appellant. She rejected or doubted other aspects of C's testimony. She was entitled to engage in this analytical process.

[8] Second, the trial judge relied on appropriate corroborative evidence to support her convictions. The photographs of the complainant supported her injuries and there was testimony from a fellow escort supporting some of the convictions.

[9] Third, the trial judge convicted the appellant of some offences. However, she also acquitted the appellant of three offences. In our view, this underlines the care taken by the trial judge in assessing C's testimony.

[10] Fourth, and crucially, the trial judge's analysis on the main charge that led to the five year sentence – human trafficking – was careful and comprehensive and covered the essence of the relationship between the appellant and C during their four months together.

Sentence Appeal

[11] The appellant does not appeal the global sentence of five years' imprisonment. He does appeal from the trial judge's treatment of pre-sentence custody. On that issue, the trial judge said:

[42] In regard to any credit for time served, as of today, R.S. will have been in custody for a period of 689 days. Of that time, 553 days elapsed between the day of his arrest on June 14, 2014 and the date of his conviction on December 18, 2015. I will allow R.S. credit for this period on the basis of one for one only. R.S. avoided arrest for a period of 10 months after he was aware that the police were trying to locate him. His lengthy criminal record, including 11 convictions for failure to abide by undertakings, recognizances, or probation orders, resulted in his not being released pending trial. R.S. has no one to blame but himself for his failure to make bail. In regard to the period of time from R.S.'s conviction until his sentencing today, a period of 136 days, I will allow R.S. credit on the basis of 1.5 to one for the following reasons. First, R.S. has been housed at the Ottawa Regional Detention Centre and the Lindsay Jail and conditions in those institutions are particularly difficult. Second, while on remand, offenders are not eligible for the type of programming available in the penitentiaries. Third, had R.S. been sentenced immediately upon conviction, the clock would have started to run for eligibility for parole, earned remission, and statutory release. Although R.S.'s behaviour since he has been incarcerated has not been exemplary, and therefore his early release prior to the completion of his sentence may not be likely, he still has been housed in an overcrowded remand centre with no meaningful opportunities for rehabilitative programming.

[Emphasis added]

[12] The appellant submits that the trial judge erred in the emphasized passage above. He says that the conditions of his pre-conviction custody were identical to those of his post-conviction, pre-sentence custody. Since the trial judge attributed, correctly, credit on a 1.5:1 basis for the latter, she should have done the same for the former.

[13] We agree with the appellant's position, essentially for two reasons.

[14] First, a principal focus of credit for pre-sentence custody must be on the conditions in detention centres: see R. v. Summers, 2014 SCC 26, at para. 70. The trial judge properly applied this focus in her consideration of the appellant's detention from conviction to sentence and gave a 1.5:1 credit. However, when considering the pre-conviction component of the appellant's pre-sentence custody, the trial judge shifted her focus; she relied on factors entirely extraneous to the prescribed focus on conditions in detention centres and reduced credit to 1:1.

[15] In our view, at least the first and second reasons the trial judge granted the appellant enhanced credit for his post-conviction, pre-sentence custody – namely the relative harshness of conditions and lack of access to rehabilitative programming in detention centres – apply equally to his period of pre-conviction custody.

[16] Second, one of the factors relied on by the trial judge for denying enhanced credit for pre-conviction custody – "R.S. avoided arrest for a period of 10 months after he was aware that the police were trying to locate him" – was also relied on by the trial judge as an aggravating factor in fixing the appropriate custodial sentence. This amounts to an impermissible "double counting" of an aggravating factor: see R. v. Nelson, 2014 ONCA 853, at para. 53.

Disposition

[17] The conviction appeal is dismissed.

[18] Leave to appeal sentence is granted, the sentence appeal is allowed, and the appellant is credited with 1033 days of pre-sentence custody, leaving a remaining custodial sentence of two years and two months.

Released: February 17, 2017

"J.C. MacPherson J.A."

"Paul Rouleau J.A."

"David Brown J.A."