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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

COURT OF APPEAL FOR ONTARIO DATE: 20230614 DOCKET: C67806 Miller, Sossin and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

S.M. Appellant

Counsel: Anthony Moustacalis, for the appellant Michael Dunn, for the respondent

Heard: May 23, 2023

On appeal from the convictions entered by Justice Christine Pirraglia of the Ontario Court of Justice on October 11, 2019, and from the sentence imposed on November 28, 2019.

REASONS FOR DECISION

Introduction

[1] The appellant appeals from conviction and sentence on eight counts relating to human trafficking for sex work of one complainant, including a conviction for assault causing bodily harm to the complainant.

[2] At the hearing of the appeal, we called on the Crown to respond to the conviction appeal, but not the sentence appeal. For the reasons that follow, we dismiss both.

The Conviction Appeal

(1) Did the trial judge err regarding the application of the s. 276 screening procedure?

[3] The appellant was not charged with sexual assault or any of the offences listed in s. 276(1) of the Criminal Code. He argues that the trial judge ruled that the s. 276 screening regime applies to sex trafficking offences to prevent the defence from leading evidence of the complainant’s prior sex work without an application; that such a ruling was an error of law; and that the ruling prevented him from pursuing a central plank of his defence.

[4] We do not agree with the appellant’s characterization of the trial judge’s ruling or that he was prevented from pursuing a central plank of his defence. In light of these conclusions, it is not appropriate to decide in this appeal whether s. 276 applies to all sex trafficking offences and related legal issues.

[5] The context in which this issue arose can be briefly stated. Twice in examination-in-chief, in answers that were not responsive to questions posed by Crown counsel at trial (not Mr. Dunn), the complainant testified that, after she finished university, she had “escorted”. Each time this happened, Crown counsel directed the complainant to another issue.

[6] In cross-examination, trial counsel for the appellant (not Mr. Moustacalis) asked the complainant the following question:

Now, I don’t want to dwell too much on this but you did mention in your evidence in-chief that while you were at Western, at some point and I’m not sure if this was still when you were there or shortly thereafter but that you started escorting at that time?

[7] Crown counsel objected and took the position that s. 276 applied, and therefore, an application was required before the defence could pursue this line of questioning. Trial counsel for the appellant did not take the position that s. 276 did not apply in the circumstances of this trial. Rather, he took the position that the questions he wanted to ask did not involve evidence of sexual activity. He said that he had not intended to get into the issue much further than to find out when the complainant began working in “the industry” (sex work); that he did not intend to ask about details; and that the term “escorting” did not necessarily imply sexual activity. The trial judge described the last argument as “naïve” in the context of this trial, a characterization which Mr. Moustacalis does not dispute.

[8] The trial judge ruled as follows: “[E]ven if [sic] just getting into the fact that she was an escort in the past I think would probably require an application. It is sexual activity.”

[9] In response to the ruling, trial counsel stated that he would move on with his cross-examination and would “consider perhaps options at some later point.” The trial judge then noted that it appeared that the trial was going to have to come back in any event for a continuation date. In the context of the surrounding discussion in the transcript, we read this comment by the trial judge as an indication that she was open to the possibility of a mid-trial s. 276 application. The surrounding comments of counsel support that they understood it the same way.

[10] Having said he would consider his position, trial counsel chose not to pursue the issue.

[11] Trial counsel did not ask the trial judge for the opportunity to make submissions on whether s. 276 applied in the circumstances of this case, nor did he bring an application under s. 276 to seek a ruling allowing him to cross-examine the complainant or lead other evidence about prior escorting by her.

[12] The trial judge’s ruling that an application was “probably” required was a ruling that evidence of the complainant’s prior escorting was “sexual activity”. No one asked the trial judge to consider whether the s. 276 regime applied to the sex trafficking offences charged in this case because the defence did not contest that it applied. In other words, at trial, both counsel accepted that the s. 276 regime applied to the sex-trafficking offences in this case. In the absence of any argument from the defence that the s. 276 regime was not applicable to this trial, the trial judge’s ruling that questions about prior escorting by the complainant were questions about “sexual activity” did not foreclose the defence from asking to make submissions on whether the s. 276 regime was applicable in the circumstances of this case, after defence counsel had “considered his options”.

[13] Nor did trial counsel bring an application to cross-examine the complainant or otherwise tender evidence related to prior sex work by her. The trial judge’s comments when the s. 276 issue arose were clear that she was open to the possibility of a mid-trial application. The fact that trial counsel for the appellant never returned to the issue or brought an application demonstrates that the issue was not central to the appellant’s defence at trial. Trial counsel’s own comments in response to the Crown’s objection also support that it was not a central issue. As noted above, he stated that he did not intend to go much further than asking when she began working in sex work. That was already in evidence from the complainant’s non-responsive answers in examination-in-chief.

[14] On the record of this trial, we are not persuaded that the appellant was precluded from raising an issue central to his defence. We see no error in the trial judge’s treatment of the s. 276 issue.

[15] We acknowledge that there is a split in decisions of the trial courts on the statutory interpretation of s. 276, specifically in its application to human trafficking offences involving sex work. The cases are divided about whether all trials for sex trafficking offences are “proceedings in respect of” one of the offences listed in s. 276 (whether or not a listed offence is among the counts charged), or whether, where a listed offence is not among the counts charged, a case-specific showing of some connection to one of the listed offences is required to engage s. 276: R. v. Williams (Williams #1), 2020 ONSC 206, 64 C.R. (7th) 226, at paras. 3-37; R. v. M.D., 2020 ONSC 951, at paras. 17-46; R. v. Langford, 2021 ONSC 4307, 74 C.R. (7th) 147, at paras. 2, 6-25; R. v. Lees, 2023 ONSC 124, at paras. 5-18; R. v. N.G., 2023 ONSC 792, at paras. 3-28; R. v. Ryckman, 2022 ONSC 20, at paras. 4-15; R. v. Maldonado Vallejos, 2022 ONSC 2753, at paras. 3-24; R. v. T.A., 2020 ONSC 6714, at paras. 2-26. There is also a split on the related issue of whether, in the event that s. 276 does not apply to all trials for sex trafficking offences, the common law requires, or should be developed to require, a screening procedure for admissibility of evidence of a complainant’s prior sexual activity (and in particular, evidence of prior sex work) beyond the ordinary rules of evidence: M.D., at paras. 47-76; R. v. Williams (Williams #2), 2020 ONSC 6347, 396 C.C.C. (3d) 267, at paras. 8-65; Langford, at paras. 40-52. These are important issues. However, given our conclusion that the trial judge made no error, and that the appellant was not precluded from raising an issue central to his defence, it would be best to leave these issues to be decided on a more fully-developed trial record.

(2) Did the trial judge misapprehend evidence or otherwise err in her findings of credibility?

[16] The appellant raised a number of alleged errors in the trial judge’s credibility assessment in his factum. He pursued two of these arguments in oral submissions.

[17] We approach this ground of appeal conscious of the guidance from the Supreme Court that appellate courts “must not finely parse the trial judge’s reasons in a search for error”: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 69. The findings of a trial judge with respect to credibility and reliability are entitled to deference. A trial judge is the judge of the facts and is uniquely positioned to assess credibility and reliability of witnesses: G.F., at paras. 69, 76-82.

[18] The appellant argues that the trial judge misapprehended evidence in rejecting the appellant’s explanation as to why the forensic examination of his cell phone revealed regular emails to and from escort sites posting advertisements offering the sale of sexual services by the complainant, as well as numerous calendar entries tracking the scheduling of her clients. He argues that the trial judge’s conclusion that it defied common sense that the appellant would give the complainant “control over” his cell phone because it also contained personal and intimate exchanges between the appellant and another woman failed to acknowledge evidence from the complainant that she sometimes used the appellant’s phone. The appellant also argues that the trial judge relied on stereotypical reasoning in making this finding.

[19] We do not agree. The trial judge’s finding was not based on stereotypical reasoning. The prohibition in engaging in stereotypical reasoning is concerned with trial judges engaging in reasoning not grounded in the evidence on the basis of stereotypes masquerading as common sense inferences: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 59, 70. In this case, the inference drawn by the trial judge that the appellant would not give control over his phone to the complainant because he would not want the complainant to see intimate exchanges he engaged in with another woman was grounded in the trial evidence. The appellant agreed in cross-examination that he would not want the complainant to see his private conversations with other women on his phone. Thus, the trial judge’s conclusion was based on inconsistency in the appellant’s evidence, not on stereotypes.

[20] Further, the trial judge did not find that the complainant had no access to the appellant’s phone. The complainant testified that she knew the password to the appellant’s phone and would play games on his phone, but “would not go through his phone.” The evidence of the complainant that she had some access to the appellant’s phone was not inconsistent with the trial judge’s finding that the appellant would not give the complainant “control over” his phone. Read in context, the inference that the trial judge drew was grounded in the volume and detail of information relating to the complainant’s sex work on the appellant’s phone. We note in particular that at the outset of her credibility analysis, the trial judge stated that much of the appellant’s evidence was “at odds with the independent evidence presented by way of cell phone extraction reports.”

[21] The appellant further argues that the trial judge erred in drawing a negative inference regarding his credibility because he stayed with the complainant despite his assertion that, during the relationship, she had fabricated false allegations against him that resulted in police intervention. [1]

[22] Again, we do not agree. The trial judge did not find that the appellant’s evidence was less credible because it was somehow unbelievable that he would stay with the complainant when, on his evidence, she repeatedly made false allegations against him. Rather, the trial judge related the evidence of the difficult history of the relationship as context for a finding based on a text exchange between the complainant and the appellant in August 2017.

[23] In this context, the trial judge summarized the appellant’s evidence that the complainant had fabricated false allegations against him that resulted in police intervention, but that notwithstanding this disruption, he stayed with her because he cared for her and wanted to make things work. The August 2017 text exchange contains vitriolic comments by the appellant towards the complainant. Based on the text messages, in the context of the history of the relationship, the trial judge made the credibility finding that the tone of the text messages was inconsistent with the appellant’s assertion that over this period of time he was “acting with his heart and not his head.” She further found that the text messages were inconsistent with his evidence that the only issue about which he argued with the complainant was her drinking habits. These findings were open to the trial judge on the record before her.

[24] The appellant raised several other discrete arguments about the trial judge’s credibility assessment in his factum that were not pursued in oral argument. We are not persuaded that individually, or together, they warrant appellate intervention.

[25] The appellant abandoned his ground of appeal relating to the trial judge’s self-instruction on the burden of proof and the branch of his argument about the trial judge’s credibility findings based on an alleged failure to exercise cultural competence in assessing evidence in order to guard against stereotypes regarding race.

The Sentence Appeal

[26] The appellant argues that the trial judge erred in failing to consider systemic anti-Black racism as a factor in determining the appropriate sentence. The appellant asks this court to vary the sentence to a totality of four-years imprisonment (less credit for pre-sentence custody). We do not agree.

[27] The appellant did not raise before the trial judge the issue of anti-Black racism as a factor in determining the appropriate sentence. Although the sentencing in this case took place before this court’s decision in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, the Superior Court decision in Morris, 2018 ONSC 5186, 422 C.R.R. (2d) 154, was released over one year prior to the sentencing hearing in this case, and was well-known in the legal community. We see no error in the trial judge not considering this issue when she was not asked to do so. Although a sentencing judge may take judicial notice of the existence of anti-Black racism, there must also be some connection between the fact of systemic racism and “the circumstances or events that are said to explain or mitigate the criminal conduct in issue”: Morris, at paras. 42, 90-101. No foundation was laid before the sentencing judge to make such a finding. Nor has the appellant sought to tender fresh evidence to support such a finding.

[28] Further, the sentence is not unfit. At trial, the appellant sought a five-year sentence. The Crown sought an eight-and-a-half-year sentence. The trial judge carefully considered the appellant’s personal circumstances, the circumstances of the offences, and the relevant sentencing principles. The sentence that the trial judge imposed – five-and-a-half-years imprisonment (less 27-months credit for pre-sentence custody and harsh custodial conditions) – was at the lower end of the range for this type of offence, and only marginally above the sentence sought by the appellant at trial. We see no basis for appellate intervention.

Disposition

[29] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“B.W. Miller J.A.”

“L. Sossin J.A.”

“J. Copeland J.A.”

[1] We note that the complainant denied that she made false allegations on any of the occasions when the police attended at their apartment during the relationship.