Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230125 DOCKET: C69002

Huscroft, Trotter and Harvison Young JJ.A.

BETWEEN

His Majesty the King Respondent

and

Oliver Ritchie Appellant

Counsel: Richard N. Stern and Amanda Warth, for the appellant Keith Garrett, for the respondent

Heard: January 20, 2023

On appeal from the convictions entered by Justice Mary E. Misener of the Ontario Court of Justice on July 25, 2019 and from the sentence imposed on September 24, 2021.

Reasons for Decision

[1] The appeal was dismissed with reasons to follow. These are our reasons.

[2] The appellant was convicted of luring a child under 16 and communicating with a person for the purpose of obtaining the sexual services of a minor (ss. 172.1(1)(b) and 286.1(2)) of the Criminal Code, R.S.C. 1985, c. C-46). A third count of luring a child under 18 was stayed pursuant to R. v. Kienapple. He was sentenced to 16 months’ imprisonment, with 2 years probation and several ancillary orders. The appellant appeals conviction and seeks leave to appeal sentence.

[3] As part of Project Raphael, the police posted an advertisement on Backpage.com, a website that was used to advertise sexual services in York Region. A detective impersonated a 14-year-old girl online and in answering text messages arranging for the provision of sexual services. Text messages were sent from the appellant’s phone in which the texter sought sexual services. The texter was informed that he was communicating with an underage girl but agreed to meet at the Springhill Suites to have sex for $80. The texter was later informed that the girl was at room 220 of the Homewood Suites. The appellant was arrested when he went to room 220 of the Homewood Suites. He was found carrying $80 in cash and two condoms.

[4] The appellant denied that he was the person who sent the texts and testified that he believed his phone had been used by a stranger, Shawn. The appellant testified that he had given Shawn a ride and that Shawn had downloaded a texting app onto his phone and used it to communicate with the detective. The appellant testified that he dropped Shawn at the Springhill Suites, entered the Homewood Suites by mistake, and went to room 220 only to return two condoms Shawn had left in the car. His evidence was corroborated in several respects by a colleague, Dr. Analisa Enrile, who testified that she was on the phone with him when he met Shawn.

[5] The trial judge found that the text exchanges “clearly demonstrate[d] that the texter was told that the girl was under 18 and that he understood that communication”, thereby proving commission of the offences by whomever was texting with the detective. The trial judge rejected the appellant’s evidence along with that of Dr. Enrile and concluded that the appellant was the texter.

[6] The appellant argues that the trial judge erred:

1. by relying on the presumption of age to convict the appellant and failing to take R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3 into consideration;
2. by misapprehending the evidence in noting that advertisements for the sexual services of children on Backpage.com used language such as “fresh”, “new”, “young”, and “shy”;
3. in failing to consider the third step of the R. v. W.(D.), [1991] 1 S.C.R. 742 analysis; and
4. by relying on R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1 to inform the sentencing range.

[7] We are satisfied that the trial judge made no such errors.

[8] First, the trial judge did not rely on the unconstitutional presumption of age provision in s. 172.1(3) of the Criminal Code. The text messages demonstrated that the texter was told that the girl was younger than the ad said, and that he was asked whether he was “cool with that”. The texter replied that it depended on how old she was, and he was informed that she was 14-years-old. The texter replied that he had no problem as long as she was “not a cop”. It was open to the trial judge to infer that the texter knew the girl was underage. In any event, even if belief had not been proven, the appellant’s decision not to make further inquiries supported a finding that he was liable on the basis of wilful blindness, in accordance with Morrison.

[9] Second, the trial judge’s reference to advertisements not in the trial record had nothing to do with her conclusion that the Crown had proven the appellant’s commission of the offences. That conclusion was amply supported by the text messages.

[10] Third, the trial judge made no error in applying W(D). The trial judge rejected the appellant’s and Dr. Enrile’s evidence, considered the remaining evidence and concluded that it proved beyond a reasonable doubt that the appellant was the texter. The evidence included: 1) the appellant’s phone vibrated after the police dialed the number of the texter; 2) the appellant arrived at the location and room specified by the detective; 3) the appellant had $80 in cash with him – the price discussed over text – and condoms. The conclusion that the appellant was the texter properly resulted in the finding of guilt on all counts. In short, this was an overwhelming case, and there is no basis to conclude that the trial judge erred in the W(D) analysis.

[11] The appeal from conviction is dismissed.

[12] The trial judge’s sentencing decision is entitled to deference unless she made an error in principle or the sentence imposed is demonstrably unfit. We see no such error. The trial judge did not misinterpret Friesen. We reiterate what this court said in R. v. M.M., 2022 ONCA 441, at para. 15: “[t]he Supreme Court’s instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here.”

[13] The appellant benefited from the trial judge’s application of the parity principle, in that the trial judge imposed a sentence lower than she otherwise would have given the sentences imposed in Project Raphael cases decided before Friesen. The 16-month sentence imposed by the trial judge cannot be said to be demonstrably unfit.

[14] Accordingly, leave to appeal sentence is granted but the appeal is dismissed.

[15] The appeal is dismissed.

“Grant Huscroft J.A.” “Gary Trotter J.A.” “A. Harvison Young J.A.”