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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

DATE: 20210823 DOCKET: C66965

Tulloch, Huscroft and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

R.S.L. Appellant

Counsel: R.S.L., acting in person Paul Alexander, appearing as duty counsel Phillipe Cowle, for the respondent

Heard: March 11, 2021 by video conference

On appeal from the conviction entered on April 30, 2019 and the sentence imposed on June 26, 2019 by Justice Robbie D. Gordon of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant, R.S.L., appeals his conviction of the following offences: sexual assault (x2), receiving material benefits from sexual services (x2), and advertising sexual services (x2). As a result of these convictions, the appellant was sentenced to a global sentence of seven and a half years, less three years pre-trial custody. He also seeks leave to appeal his sentence, and if leave is granted, he appeals his sentence.

[2] The appellant appeals his convictions on the basis that the trial judge committed a number of errors with respect to his factual findings. The appellant is essentially asking this court to review the credibility findings of the trial judge. For the following reasons, we are not satisfied that the trial judge committed any errors in his factual findings to warrant appellate intervention.

The Background Facts

[3] The underlying facts can be summarized as follows.

[4] The allegations against the appellant involved three complainants: J.T., J.F., and J.L. The appellant was convicted of all charges related to J.T. and J.F., and acquitted on all charges in respect of J.L. All three complainants were in their early twenties at the time when they met and became involved with the appellant. The appellant was in his late forties. All the complainants were addicted to various types of illicit drugs, including cocaine and fentanyl. Because the appellant was acquitted of the charges pertaining to J.L., we focus our analysis only on the evidence relating to J.T. and J.F.

[5] The two complainants, who were the subject of the convictions, testified that they were both sexually assaulted by the appellant, and that at various times the appellant used his own computer to create an escort service advertisement on the online website known as Backpage.com. Both complainants, J.T. and J.F. testified that the appellant took an active role in the advertisement for sexual services, the provision of a room rented by the appellant to meet clients, the amount of fees which each of them charged their various clients, and the monies that should be paid to the appellant in return, by each complainant. The appellant also provided each of J.T. and J.F. with a cellular phone for communications between their clients, and at times, he supplied both complainants with drugs that were to be paid for through escorting.

[6] The appellant did not testify.

[7] The trial judge found the evidence of both J.T. and J.F. credible and reliable, and convicted the appellant of all charges pertaining to these two complainants. He had a reasonable doubt with respect to the evidence of J.L. and acquitted the appellant with respect to the charges pertaining to her.

The Grounds of Appeal

[8] In oral argument, the appellant, through duty counsel, advanced three principal grounds of appeal, essentially attacking the trial judge’s credibility findings. He says that the trial judge erred:

i.) By drawing the impermissible inference that both complainants’ evidence was more credible because they repeated the same version of events on several previous occasions;

ii.) By not considering the risk of collusion by the various complainants, especially because J.T. and J.F. were friends; and

iii.) By improperly relying on the lack of embellishment in both complainants’ allegations and evidence to support their credibility.

Discussion

[9] It must be noted at the outset that a trial judge’s findings of credibility are owed heightened deference and absent a palpable and overriding error will not be interfered with on appeal: R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, at para. 81; R. v. R.E.M., 2008 SCC 3, [2008] S.C.R. 3, at para. 32.

[10] The appellant argues that the trial judge committed palpable and overriding errors in his factual findings regarding the credibility of the complainants.

[11] First, the appellant argues that the trial judge drew the impermissible inference that both complainants’ evidence was more credible because they repeated the same version of events on several previous occasions.

[12] The appellant’s argument is based on the following excerpt from the trial judge’s reasons, where he made certain observations. With respect to the evidence of J.T., he stated:

I find her evidence to be reliable for several reasons. To begin with, her version of events seemed to have remained quite consistent. She gave a lengthy statement to the police. She testified at the preliminary hearing. She gave evidence at trial. Yet I was directed to very few inconsistencies in her evidence.

[13] In reference to the evidence of the complainant, J.F., the trial judge stated as follows:

She gave a detailed statement to police, testified in the preliminary hearing, and gave evidence at trial. If there were significant changes in her story, they were not brought to my attention. In short, she was believable. There’s not good reason to doubt the reliability of her evidence and where corroboration might be expected to be found, it was.

[14] These observations and comments by the trial judge were made within the context of arguments raised by the defence attacking the credibility and reliability of both complainants’ evidence, as they were both heavy drug users and were addicted to both fentanyl and cocaine.

[15] In his closing submissions, the defence counsel at trial made the following statement, which outlined his approach to the evidence:

Credibility in these cases is extremely important. We have to look at not only what they said in examination-in-chief, but what they said in cross-examination, how they presented themselves, what issues they had concerning drug use, drug consumption and how that affected their memory, if any, and the type of drug that was used.

Now, Your Honour is well aware this is – We’re not just talking about just cocaine here. We’re talking about fentanyl. All three young ladies are talking about fentanyl, and I’m going to go about it in a different fashion than my friend. I’m going to start with [J.L.], Your Honour.

[J.L.] was indicating that she, after leaving detox in early November, relapsed and started using fentanyl. She hadn’t met Mr. [L.]. yet, and from what we heard, she was already escorting with her friend named [B.]

In her own words. And she’s on fentanyl and cocaine. So, all of this is memories made by her while under, what I would put a tremendous amount of drugs that she’s getting from – She gets patches from anybody.

And then we recall that she got into fentanyl, and I think it was [J.], and I stand to be corrected about [fentanyl], Your Honour. So, all of that affecting memory recall and otherwise.

[16] It is clear from the above excerpts that the defence strategy was to attack the credibility and reliability of the complainants’ evidence by highlighting and focusing on the impact of their heavy drug use and addictions on their memory, and their ability to accurately recall what had occurred in their lives during the time period of the allegations.

[17] In his reasons for judgment, before making any reference to the consistency of the complainants’ prior statements, the trial judge specifically referenced the defence argument, which provided the context for his subsequent comments on the credibility and reliability of the complainants’ evidence:

Defence counsel argued that the evidence of J.T. was neither credible nor reliable. He pointed out that she was, during much of the period in question, a heavy user of fentanyl and therefore her ability to recall and relate evidence would necessarily be compromised. He pointed out that by her own admission, she recruited J.F. to work with her as an escort for the accused. He questioned why she would have done so if she had been sexually assaulted by him.

[18] It was perfectly appropriate for the trial judge to reference the previous consistent versions of the complainants’ evidence within the context of defence counsel’s attack on the reliability of their evidence due to faulty memory, which could have been induced by the consumption of heavy drug use. We do not agree that the trial judge used the prior consistent versions as corroboration, but rather to provide important context for assessing the reliability of the evidence of the two complainants: R. v. L.O., 2015 ONCA 394, 324 C.C.C. (3d) 562, at para. 34.

[19] The judge’s reasons when read as a whole and in the context of the submissions of defence counsel at trial do not reveal any error that warrants appellate intervention. Accordingly, we would not give any effect to this ground of appeal.

[20] The second argument raised by the appellant is that the trial judge erred in not addressing the risk of collusion in the respective complainants’ evidence, as the two complainants were close friends who made very similar allegations against the appellant.

[21] We do not agree.

[22] At trial, the Crown filed a similar fact application which was dismissed by the trial judge. The issue of innocent collusion was relevant only to the similar fact application. Once this application was dismissed, it was no longer an issue on the trial proper. On the trial proper, the defence’s argument was that the complainants were either deliberately lying, or that their evidence was unreliable because of their drug use and addiction. The trial judge made specific findings of fact that the complainants’ evidence was both credible and reliable.

[23] The veracity of their evidence was not affected by their drug consumption. As a result, there was no merit to the argument that the complainants were mistaken about the material elements of the offences they alleged against the appellant.

[24] Both complainants were clear in their evidence that they were sexually assaulted by the appellant, and that they participated in sex work that financially benefitted the appellant.

[25] We would not give any effect to this ground of appeal.

[26] Finally, the appellant argues that the trial judge erred in his credibility assessment of the complainants’ evidence by improperly relying on lack of embellishment to support the complainants’ credibility.

[27] The appellant relies on the following excerpt from the trial judge’s reasons to substantiate this position:

I find her to be compelling for many of the same reasons I found the evidence of J.T. to be compelling. Like J.T., J.F. was quick to admit her shortcomings, no matter the light they cast her in. She admitted to a longstanding addiction to drugs. She admitted to voluntarily working as an escort. She placed blame for her actions nowhere but on herself. She did not overstate or dramatize her situation. She was very matter of fact at setting out how her life had played out.

When she spoke of what her addiction had cost her, of her loss of self-respect, she did not speak angrily of Mr. [L.]. Even when she described being sexually assaulted by him, she did not express anger or resentment towards him. Rather she described it as a point at which she realized that all of her self-worth had gone.

[28] We do not agree with the appellant’s characterization of the impugned portion of the trial judge’s reasons.

[29] A trial judge’s reasons must be read as a whole, and within the context of the evidence adduced at trial. At trial, the appellant attacked the credibility and reliability of the complainants’ evidence. On several occasions in closing submissions, the defence highlighted the fact that the complainants were heavy drug users. They were both addicted to fentanyl and cocaine, and were admittedly, escorts. The judge’s observation is simply a recognition of the forthrightness and candour of both complainants’ evidence, a factor that goes directly to the credibility of each witness, and a factor that was properly within the purview of the trial judge to consider.

[30] In the result, we are satisfied that the findings made by the trial judge were open to him. The specific complaints advanced do not rise to the level required to warrant our interference.

Disposition

[31] The appeal from conviction is dismissed.

[32] In his notice of appeal, the appellant also appealed his sentence on the basis that the sentence was excessive. The appellant was sentenced to a total of seven and a half years, less three years pre-trial custody. The sentence comprised of two consecutive three-year sentences for two counts of sexual assault on two complainants, and an additional 18-month consecutive sentence for the prostitution-related offences.

[33] The sentence imposed was within the appropriate range, considering the nature of the offences, as well as the aggravating factors outlined by the trial judge.

[34] The sentencing decision is entitled to considerable deference unless this court is satisfied that the sentence imposed was demonstrably unfit, or that the sentencing judge made an error in principle that had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 10-11, and 39-41.

[35] We see no errors in the sentence imposed, nor was the sentence demonstrably unfit; as such, there is no basis for us to interfere.

[36] Leave to appeal sentence is granted; sentence appeal is dismissed.

“M. Tulloch J.A.”

“Grant Huscroft J.A.”

“J.A. Thorburn J.A.”