Her Majesty the Queen v. Lukacko [Indexed as: R. v. Lukacko]

59 O.R. (3d) 58

[2002] O.J. No. 1293

Docket No. C33205

Court of Appeal for Ontario

McMurtry C.J.O., Rosenberg and Simmons JJ.A.

April 9, 2002

Criminal law -- Evidence -- Hearsay -- Business records -- Accused operated escort agency -- Accused charged with living off avails of prostitution -- Accused denied knowing that escorts engaged in prostitution -- Crown sought to admit records made by agency's phone operators which included information provided by clients and escorts to establish accused's knowledge that clients and escorts engaged in sexual acts -- Written records admissible under s. 30 of Canada Evidence Act -- Information in records provided by persons other than phone operators admissible for its truth under co- conspirators exception to hearsay rule -- Canada Evidence Act, R.S.C. 1985, c. C-5, s. 30.

Criminal law -- Evidence -- Hearsay -- Co-conspirators exception -- Accused operating escort agency charged with living off the avails of prostitution -- Accused denying knowledge that escorts acting as prostitutes -- Crown seeking to prove knowledge through records made by agency's phone operatives setting out information from escorts and clients -- Evidence proving that accused reviewed records from calls -- Accused alleging records amounting to "double hearsay" not admissible to prove that accused knew of prostitution -- Written records admissible under s. 30 of Canada Evidence Act -- Information within records admissible to prove accused's knowledge pursuant to co-conspirators exception to hearsay rule -- Escorts and undercover police officers gave evidence of common design to run prostitution ring under guise of legitimate escort agency and that accused probably a party to common design -- Records amounting to declarations in furtherance of common design admissible to prove truth of its contents -- Appeal from conviction dismissed -- Canada Evidence Act, R.S.C. 1985, c. C-5, s. 30.

Criminal law -- Publication ban -- Fair trial -- Accused charged with living off avails of prostitution -- Trial judge banning publication of identities of escorts both named and not named in the indictment -- During trial breaches of publication ban allegedly occurred after which accused seeking stay of proceeding based on assertion that possible defence witnesses no longer willing to testify -- Accused calling no evidence to support assertion -- Accused stating would not seek to compel attendance of reluctant witnesses -- Trial judge did not err in refusing stay of proceeding -- On appeal accused seeking to adduce own affidavit as fresh evidence that many defence witnesses declined to testify after breach of publication ban but maintaining his position that he would not compel reluctant witnesses to testify -- Fresh evidence not demonstrating accused's right to fair trial infringed nor that trial judge's ruling incorrect -- Accused making tactical choice not to compel reluctant witnesses to testify -- Appeal from conviction dismissed.

Criminal law -- Sentence -- Prostitution offences -- Accused operating escort agency convicted of living off avails of prostitution over seven years -- 33-year-old accused with no prior criminal record -- Accused sole support of wife and child -- No threats or coercion against escorts -- Custodial sentence of two years less one day imposed at trial -- Trial judge erred in refusing defence request for adjournment to prepare sentencing submissions -- No pre-sentence report prepared -- Accused on bail pending appeal for two years -- Sentence appeal allowed and sentence reduced to one year's imprisonment.

The accused was convicted of living off the avails of prostitution and exercising direction for the purpose of aiding prostitution as the result of operating what he alleged was a legitimate escort agency. There was direct evidence at trial that escorts employed by his agency engaged in acts of prostitution. The only real issue at trial was whether the accused was aware of this conduct. The Crown relied in part upon records kept in the agency office to bolster the credibility of Crown witnesses and demonstrate the accused's knowledge of the nature of the business. The records were compiled by "phone girls", who took information from the clients to arrange the dates with escorts. Some of the information recorded in the records indicated that the clients expected the escorts to engage in sexual acts. The phone girls also took information from the escorts about the money collected and what occurred on the dates. Undercover police officers testified about the accused's direct knowledge that his escorts were eng aged in prostitution. Evidence was also led that the accused reviewed the records made by the phone operators. The trial judge admitted the records under s. 30 of the Canada Evidence Act.

At the outset of the trial, the trial judge made an order banning publication of the identity of witnesses under s. 486 of the Criminal Code, R.S.C. 1985, c. C-46 and ruled that the publication ban applied to the identities of both the escorts named in the indictment and the escorts who were not named. After a newspaper published a photograph of one of the escorts with her face partially obliterated, the accused brought a motion to have the newspaper cited for contempt. The trial judge found that the newspaper had not violated the publication ban. The accused then sought a stay of proceedings, arguing that the newspaper story discouraged defence witnesses from coming forward and compromised his right to a fair trial. The motion was dismissed, as was a subsequent motion for the same relief, on the basis that the accused's allegations that defence witnesses were not coming forward or were backing out was not supported by any evidence. Finally, after a newspaper apparently breached the publication ba n by identifying two witnesses by name, the trial judge ruled that he would take the matter of contempt of court under advisement but that the trial should proceed.

After he entered the convictions, the trial judge required counsel to make submissions on sentence and refused to adjourn the proceedings to allow the accused to prepare submissions or call evidence. He did not have the benefit of a pre-sentence report. He sentenced the accused to a term of imprisonment of two years less a day.

The accused appealed his conviction and sentence. He submitted that the records compiled by the phone girls from information supplied by clients and escorts should not have been admitted as s. 30 of the Canada Evidence Act does not authorize the admission of double hearsay. He also submitted that the trial judge's alleged failure to enforce the publication ban deprived him of a fair trial.

Held, the conviction appeal should be dismissed; the sentence appeal should be allowed.

The issue of whether double hearsay is admissible under s. 30 of the Canada Evidence Act did not have to be resolved, since the information contained in the records was admissible under the co-conspirators exception to the hearsay rule. For the exception to apply, there must be evidence of a conspiracy or a common design; there must also be evidence, other than the hearsay statements themselves, that the accused is probably a party to the common design, and that the statements were made in furtherance of the common design. If these prerequisites are met then hearsay statements by other parties in furtherance of the common design are admissible for their truth against the accused. There was evidence that the escort agency was really a guise for a prostitution ring and non-hearsay evidence proved that the accused was probably a party to that design. As a result, the various statements by the escorts recorded in the business records were admissible for their truth against the accused as they were in furtherance of a common design. The financial information in the records was used by the accused to keep track of the business itself. It was an essential element of the common design. The information about the various sexual acts was also in furtherance of the common design as it was used to match clients with appropriate escorts and to warn escorts about potential problems. The records were declarations made for the purpose of furthering the common design of operating a prostitution ring under the guise of a legitimate business. The written records were admissible under s. 30 of the Canada Evidence Act, and the information provided by persons other than the authors of the records was admissible for its truth under the co-conspirators exception to the hearsay rule.

The accused failed to establish that his right to a fair trial was infringed by the trial judge's handling of the publication ban. Defence counsel said that he was not prepared to compel the attendance of reluctant witnesses and did not apply to the court for assistance in obtaining their presence. He did not apply for an in camera hearing or any other measure that would protect the identities of the proposed witnesses. On instructions from his client, he made a tactical decision not to try to obtain the evidence of reluctant witnesses. On appeal the accused sought to adduce his own affidavit of fresh evidence in support of his assertion that he was deprived of helpful defence witnesses as the result of the alleged breaches of the publication ban. However, he reiterated his position that he was not willing to compel reluctant witnesses to testify. The accused's inability to make full answer and defence was caused not by the breach of the publication ban or any inaction by the trial judge but rather by tactical decisions. The fresh evidence does not reveal that the trial judge's decisions were wrong and that a miscarriage of justice occurred.

The trial judge erred in principle in refusing a reasonable request by defence counsel to allow for preparation of sentencing submissions and the calling of evidence. The accused did not use violence or intimidation in operating his escort agencies. Fresh evidence on appeal indicated that the 33 year old accused had no prior criminal record and that he was the sole means of support of his spouse and children. He had served almost two months of the sentence imposed by the trial judge and had been on bail pending appeal for over two years without incident. The sentence was reduced to one year's incarceration.

APPEAL from a conviction for prostitution offences and from a sentence.

R. v. Barrow (2001), 2001 8550 (ON CA), 54 O.R. (3d) 417, 155 C.C.C. (3d) 362, 42 C.R. (5th) 203 (C.A.), distd Other cases referred to Palmer v. R., 1979 8 (SCC), [1980] 1 S.C.R. 759, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34 (sub nom. Palmer and Palmer v. The Queen); R. v. Baron (1976), 1976 775 (ON CA), 14 O.R. (2d) 173, 31 C.C.C. (2d) 525 (C.A.); R. v. Gregoire (1998), 1998 17679 (MB CA), 129 Man. R. (2d) 261, 180 W.A.C. 261, [1999] 4 W.W.R. 280, 130 C.C.C. (3d) 65 (C.A.); R. v. Koufis, 1941 55 (SCC), [1941] S.C.R. 481, 76 C.C.C. 161, [1941] 3 D.L.R. 657; R. v. Lynch (1978), 1978 2347 (ON CA), 40 C.C.C. (2d) 7 (Ont. C.A.); R. v. Martin (1997), 1997 9717 (SK CA), 152 Sask. R. 164, 140 W.A.C. 164, [1997] 6 W.W.R. 62, 8 C.R. (5th) 246 (C.A.); R. v. W. (W.) (1995), 1995 3505 (ON CA), 25 O.R. (3d) 161, 100 C.C.C. (3d) 225, 42 C.R. (4th) 26 (C.A.) Statutes referred to Canada Evidence Act, R.S.C. 1985, c. C-5, s. 30 Criminal Code, R.S.C. 1985, c. C-46, s. 486

Paul Burstein, for appellant. Christine Bartlett-Hughes, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- The appellant was tried by Keenan J. without a jury on eight counts of living off the avails of prostitution and eight counts of exercising direction for the purpose of aiding prostitution. The charges relate to two escort agencies the appellant ran during two time periods: 1993 to 1995 and 1996 to 1998. The trial judge dismissed four of the charges on an application for a directed verdict. The appellant pleaded guilty to one of the counts relating to the first period. The trial judge found the appellant guilty of all the remaining counts and sentenced him to two years' less one day imprisonment. The appellant appeals his conviction and sentence.

[2] The appellant raises two principal grounds on the appeal from conviction. The first ground concerns the trial judge's reliance on certain business records. I have concluded that the trial judge did not err in admitting those records or in relying on them as he did. With the admission of those records, the case against the appellant is a formidable one. The second ground of appeal concerns the trial judge's failure to enforce a ban on publication. The appellant submits that the trial judge's inaction deprived the appellant of a fair trial. In respect of this ground, the appellant seeks to tender fresh evidence. I have concluded that the way the trial judge dealt with the publication ban did not deprive the appellant of a fair trial. I would therefore dismiss the appeal from conviction. I would allow the sentence appeal and reduce the sentence to 12 months' imprisonment.

[3] The only live issues at trial concerned the second period of the escort service from 1996 to 1998. The appellant pleaded guilty to one of two counts concerning operation of the escort service during the first period. There was direct evidence that escorts employed by the agency during the second period engaged in acts of prostitution. Indeed, the appellant made a formal admission to that effect at the opening of the trial. The only real issue at trial was whether the appellant was aware of this conduct. While there was direct evidence of the appellant's knowledge from several of the agency's employees, including a key witness named J.C., the Crown relied upon records kept in the agency office to bolster the credibility of the witnesses and demonstrate the appellant's knowledge of the nature of the business. If admitted for the truth of their contents, those records demonstrated that the escorts were engaged in acts of prostitution. J.C. testified that she saw the appellant looking at those records.

[4] As part of the investigation of the appellant's second escort agency, the police mounted an undercover operation. An officer obtained employment with the agency and on one occasion the appellant drove her to one of her dates. The officer testified that on the way to the date, she asked the appellant about condoms and the appellant told her she had to supply her own. He also told her that she had control over the types of sexual acts performed with the client.

[5] The appellant testified. He admitted that he knew that the escorts employed in the first escort agency engaged in acts of prostitution. He claimed, however, that in 1996 he set out to run an agency that did not offer sex for hire. While he was aware that clients had on occasion attempted to force escorts to have sex, he believed that the escorts rebuffed these attempts. The appellant also testified that he would from time to time review the records but he claimed he only did so for purposes of balancing the books and did not see the notes that showed the escorts were engaging in sexual acts.

[6] In convicting the appellant, the trial judge relied upon the records.

The Hearsay Issue

[7] The police executed a search warrant at the appellant's place of business and seized a large number of records. These records were either written or contained in a computer database. The information in these records, if admitted for its truth, established that the escorts were engaging in acts of prostitution with the clients. The records were compiled by "phone girls". The phone girls took information from the clients to arrange the dates. The phone girls kept cards relating to the clients and each escort. Some of the information recorded on the cards indicated that the clients expected the escorts to engage in sexual acts. The phone girls also took information from the escorts about the money collected and what occurred on the dates. There was a special file known as the "nasty files" that contained information about bad calls, as where an escort may have been abused or required to engage in certain types of sexual acts. There were also entries flagging that certain of the escorts may have been HIV positive and that accordingly their clients may have been infected.

[8] Crown counsel at trial relied upon s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5 and several common law hearsay exceptions for admission of the records. Crown counsel called J.C. and several other phone girls to interpret the records. The appellant's principal submission is that s. 30 does not authorize the admission of double hearsay. In a related submission, the appellant argues that there was no admissible evidence of the identity of the two escorts identified by name in counts five to eight of the indictment.

The application of s. 30 of the Canada Evidence Act

[9] At the opening of the trial, the appellant conceded that the records were admissible under s. 30. Defence counsel stated:

It is also acknowledged that all of these documents are business records of the business and need not be proved in that regard. Obviously, the interpretation of any document is always with Your Honour as the trier of fact, but certainly in terms of we don't have to go through them for the proof of them in any way, and they're admissible on their face.

[10] It later appeared that counsel did not intend to concede that double hearsay in the documents was admissible for its truth. I agree with trial counsel's concession that s. 30 could apply in this case. The fact that the business was, on the Crown's theory, set up for a criminal purpose or that the people making the entries in the records were accomplices to a criminal enterprise did not take it out of the section. There was evidence that the records were made in the usual and ordinary course of business and relied upon in the day-to-day operation of the agency.

[11] The appellant submits that even if the records were admissible under s. 30, the information recorded in the records was not admissible for its truth because it was based upon hearsay. The argument turns upon the wording of s. 30(1):

30(1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.

(Emphasis added)

[12] The appellant's argument goes as follows. Section 30(1) relieves against only one layer of hearsay. As applied to this case, if the Crown could prove that the phone girls made the records in the usual and ordinary course of business, the records would be admissible even if the Crown failed to call the particular phone girl who authored the records. Just as the phone girl's oral evidence that she had recorded the information would be admissible as proof that she made the entries, the records would be admissible for the same limited purpose. However, to the extent it was based upon something told to the phone girl by an escort, the information contained in the records is inadmissible hearsay. The records are not admissible for the truth of their contents because, if called as a witness, the phone girl would not be permitted to relate what the escort said to her unless some independent hearsay exception applied. In the words of s. 30(1), oral evidence in respect of those matters would not be admissible.

[13] The case law is largely against the appellant on this issue. See in particular R. v. Martin (1997), 1997 9717 (SK CA), 8 C.R. (5th) 246, 152 Sask. R. 164 (C.A.) and R. v. Gregoire (1998), 1998 17679 (MB CA), 130 C.C.C. (3d) 65, 129 Man. R. (2d) 261 (C.A.). However, I need not resolve that issue in this case since the information contained in the records was admissible under the co-conspirators exception to the hearsay rule.

[14] Martin J.A. explained the application of the co- conspirators exception to the hearsay rule as follows in R. v. Baron (1976), 1976 775 (ON CA), 14 O.R. (2d) 173, 31 C.C.C. (2d) 525 (C.A.) at p. 191 O.R., p. 544 C.C.C.:

The governing rule of evidence is not in doubt, although its application in a particular case often raises questions of great difficulty. The rule is based upon a principle of agency. If A and B have agreed to achieve a common unlawful purpose, then by their agreement each has made the other his agent to achieve that purpose, with the result that the acts and declarations of A in furtherance of the common design are not only A's acts and declarations but, in law, are also B's acts and declarations. The rule of evidence is not limited to charges of conspiracy but applies to any offence which is the result of preconcert: Koufis v. The King (1941), 1941 55 (SCC), 76 C.C.C. 161, [1941] 3 D.L.R. 657, [1941] S.C.R. 481; Phipson on Evidence, 11th ed. (1970), p. 119. It only comes into play, however, where there is evidence fit to be considered by the jury that the conspiracy alleged between A and B exists. It is clear that where the fact in issue to be proved is whether a conspiracy exists between A and B, A's acts, or declarations implicating B cannot be used to prove that B was a party to the conspiracy, in the absence of some other evidence admissible against B to bring him within the conspiracy . . . .

(Emphasis added)

[15] For the exception to apply, there must be evidence of a conspiracy or, as here, a common design; there must also be evidence, other than the hearsay statements themselves, that the accused is probably a party to the common design. If there is such evidence, hearsay statements by other parties in furtherance of the common design are admissible for their truth against the accused. In this case, there was evidence both of the common design and that the appellant was probably a party to it. J.C. and the other phone girls gave evidence that the appellant participated in the discussions about acts of prostitution and saw the records that referred to sexual acts. Several undercover police officers gave evidence of attempted acts of prostitution by escorts hired through the appellant's agency. In fact, at the opening of the trial, counsel for the appellant made a formal admission that "some of the escorts who worked for the escort agency engaged in acts of prostitution during the material times, and these would include the specific girls named in the indictment." An undercover policewoman testified that the appellant discussed condoms and sexual acts with her. This was evidence of the existence of the common design and the appellant's probable membership in it.

[16] The various statements by the escorts as recorded in the business records were admissible for their truth against the appellant provided that they were in furtherance of the common design. In my view, they were. Martin J.A. explained the "in furtherance" requirement as follows in R. v. Lynch (1978), 1978 2347 (ON CA), 40 C.C.C. (2d) 7 (Ont. C.A.) at p. 24:

The "in furtherance" requirement implies that the declaration of one conspirator is admissible against a co-conspirator only if it is made for the purpose of advancing the objectives of the conspiracy, or constitutes a step in furtherance of the common design, as distinct from a mere statement about the conspiracy made by a conspirator during the course of the conspiracy.

(Emphasis added)

[17] The financial information in the records was used by the appellant to keep track of the business itself. It was an essential element of the common design. The information about the various sexual acts was also in furtherance of the common design. The information was used to match clients with appropriate escorts and to warn escorts about potential problems. In short, the records consisted of declarations made for the purpose of advancing the common design of operating a prostitution ring under the guise of a legitimate business. I agree with counsel for the appellant that some of the recorded information might be suspect and some of the escorts might have had motives for providing false information. However, this goes to the weight of the evidence, not its admissibility. The appellant did not attack the viability of the co-conspirators exception to the hearsay rule either before the trial judge or in this court.

[18] Although the trial judge seems to have admitted the records on the basis of s. 30 of the Canada Evidence Act, he recognized that the co-conspirators exception could also apply. He referred to the Koufis case [R. v. Koufis, 1941 55 (SCC), [1941] S.C.R. 481, 76 C.C.C. 161] and expressly indicated that only those acts or declarations of alleged co-conspirators made in furtherance of the conspiracy would be admissible. In his reasons, the trial judge showed that he was alert to the frailty of some of the information in the records.

[19] To summarize, the written records were admissible under s. 30 of the Canada Evidence Act. The information in the records provided by persons other than the authors of the records was in turn admissible for its truth under the co- conspirators exception to the hearsay rule.

Proof of the identity of the escorts

[20] Counts 5 and 6 of the indictment named Z.B. and counts 7 and 8 named S.N. as the escorts in relation to whom the offences of living on the avails and exercising direction were committed. Police officers arrested an escort who identified herself as Z.B. after she attempted to engage in sexual acts with an undercover officer. Z.B. used the name Brianna in the course of her employment with the appellant's escort agency. She did not testify. The appellant submits that there was no admissible evidence of the identity of Z.B. and S.N.

[21] I doubt that this argument is available to the appellant in view of the formal admission referred to earlier. However, I am satisfied that this ground of appeal cannot succeed in any event. The appellant's submission really depends upon the proposition that the information in the business records is inadmissible hearsay. Given my conclusion that the records were admissible for the truth of their contents, I find that there was sufficient evidence of identity.

[22] A card kept by the agency and admissible as a business record gave Brianna's real name. The description on the card matched the description given by a police officer with whom she had attempted an act of prostitution. J.C. identified Z.B./Brianna as one of the escorts. In my view, there was sufficient admissible evidence that the Z.B. named in the indictment was the escort Brianna employed by the appellant's agency and who attempted to engage in sexual acts with the undercover police officer. There was also evidence from J.C. that the appellant personally knew Z.B. and knew that she engaged in prostitution. In fact, J.C. testified that the appellant wanted to keep Z.B. as an employee because she had a lot of repeat business and would perform acts that other escorts would not. There was similar evidence of the identity of S.N. In particular, the appellant testified that he knew an escort by the name of S.N.

[23] I would not give effect to any of the grounds of appeal relating to admission of hearsay evidence.

Breach of the publication ban

[24] The appellant submits that the trial judge's failure to promptly deal with a breach of the publication ban deprived the appellant of his right to make full answer and defence. Analysis of this ground of appeal requires a detailed review of the trial chronology.

[25] The trial of this matter began on October 5, 1999. At the request of Crown counsel at the opening of the trial, the trial judge made an order banning publication of the identity of witnesses under s. 486 of the Criminal Code, R.S.C. 1985, c. C-46. The relevant parts of s. 486 are contained in subsections (3) and (4)(b):

486(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section . . . 212 . . .

(4) The presiding judge or justice shall,

(b) on application made by the complainant, the prosecutor or any such witness, make an order under that subsection.

(Emphasis added)

[26] On October 6, 1999, counsel for a Toronto television station appeared and made brief submissions concerning the scope of the publication ban. At that point, he was seeking an opportunity to make submissions concerning the publication ban and access to the exhibits. Interestingly, defence counsel (not Mr. Burstein) took the position that once a document was entered as an exhibit, it was in the public domain and the press was free to publish it. The trial judge made no ruling at this stage.

[27] On October 7, counsel for the broadcaster returned to make further submissions about the publication ban. Counsel for the Toronto Sun newspaper also appeared. The broadcaster was unsure whether the order applied to all witnesses or only those witnesses who were named in the indictment. As the argument proceeded, it became apparent that Crown counsel wanted to protect the identity of the various escorts identified in the records seized from the appellant's business premises, although they would not be called as witnesses. Crown counsel also took the position that the trial should proceed without revealing the names of the clients identified in the records. As I understand it, this would be accomplished by blacking out the client's names on the records and, presumably, by avoiding the use of client names in oral testimony.

[28] Defence counsel took the position that the escorts not named in the indictment were technically not covered by s. 486 and he would oppose the Crown's application if it were a jury case. His reasoning seemed to be that this would somehow prejudice his client in the eyes of jurors. However, since it was a judge alone trial, defence counsel did "not have a problem with . . . your Honour's order". Defence counsel agreed that the names of clients were irrelevant and so they should be blacked out of the exhibits.

[29] Following argument, the trial judge ordered that the publication ban would apply to the identities of both the escorts named in the indictment and the escorts who were not named. He found that all the escorts could be considered "complainants" entitled to the protection of the publication ban under s. 486 of the Criminal Code. Accordingly, he ordered that the ban cover all personal information in the business records that would disclose the real identities of the escorts. Finally, although he did not order a publication ban on client names, he ruled inadmissible all information tending to disclose the identities of clients of the escort service. The trial judge reasoned that such information would be hearsay and irrelevant. He therefore ordered that all information identifying clients be blacked in the documents admitted into evidence.

[30] I point out that at this juncture, defence counsel had raised no concern about the disclosure of the identity of any potential defence witnesses. There was no suggestion that he had any concern that these witnesses might not testify.

[31] On October 12, in the course of cross-examining J.C., counsel for the appellant noted that he and Crown counsel had agreed that he would cross-examine her in a way that would ensure her "stage name" would not be disclosed. Counsel also stated that the press had been reporting the stage names of the various escorts. After some brief submissions, the trial judge said to defence counsel:

. . . if you have any concerns about that then we will deal with it directly, and I will make it a further unnecessary [sic ancillary?] order not to publish the names.

[32] On October 13, counsel for the appellant brought a motion to have the Toronto Sun cited for contempt. The motion was based on a photograph of one of the escorts that appeared in the newspaper that morning. The face in the photograph had been partially obliterated. A picture of a card seized from the appellant's premises accompanied the photograph. The card suggested that the escort was HIV positive. The photograph was one of a series of pictures entered during J.C.'s testimony. Defence counsel stated that the woman who appeared in the photograph had come forward on the weekend and had been willing to testify for the defence. Counsel stated that "[s]he may not now be a witness because she may not want to come as a result of this."

[33] The trial judge found that the Toronto Sun had not violated the publication ban. He found that a reader would see that the card did not relate to the woman depicted in the photograph. He also held that the publication ban did not cover the stage names of the escorts.

[34] After the trial judge ruled on the contempt motion, counsel for the appellant brought a motion for a stay of proceedings. He argued that anyone who knew the woman in the photograph would be able to identify her. He went on to say that to the extent that the Toronto Sun story would discourage defence witnesses from coming forward, the appellant's right to a fair trial would be compromised. He also indicated that he would not subpoena reluctant witnesses. Finally, he stated that at this point he had no information that any potential defence witness was unwilling to testify.

[35] The trial judge dismissed the motion. He stated that there was nothing that convinced him that the appellant's right to a fair trial or the right to make full answer and defence would in any way be infringed by the publication of the article. Later that same day, counsel for the appellant asked that the trial judge clarify or extend his order to ban publication of any information that "might tend to disclose in any way the identity of any of the employees of the escort agency". The trial judge refused to alter his order notwithstanding his comments the previous day.

[36] The Crown concluded its case on October 18, 1999. On that same day, before beginning the defence case, counsel for the appellant made a further motion for a stay of proceedings. Counsel for the appellant stated that of the 26 witnesses who had come forward to testify for the defence, 20 backed out because of the earlier Toronto Sun story. Then, as a result of a story on October 16 in the Toronto Star containing sketches of two of the undercover police officers, five other witnesses had now backed out. Counsel stated that he was now down to two witnesses who were willing to testify for the defence.

[37] The trial judge dismissed the motion. He held that counsel's assertions were "not supported in any way by any evidence or any documentation, which I would have expected if these were serious allegations".

[38] On October 21, 1999, counsel for the appellant brought a further motion for a stay of proceedings and to cite the Toronto Sun for contempt. This motion was based on a story that appeared in the paper that morning. At this stage of the trial, the defence witness A.S. was in the middle of her examination in chief. A.S. had worked as an escort and then as a phone girl.

[39] In the story, A.S. and K.S., a defence witness who had finished testifying, were identified by name. The story appeared to be a breach of the trial judge's order. Counsel for the appellant stated that A.S. was now refusing to come back into court to continue her testimony. Since working for the appellant, A.S. had left the escort agency business and had turned her life around.

[40] The trial judge ruled that it appeared that the Toronto Sun was in violation of the publication ban. He held that since this was contempt out of the face of the court, it would have to be a separate proceeding and he would take the matter under advisement. In the meantime, the trial would proceed.

[41] The trial proceeded with another defence witness, not one of the escorts. Then another escort, B.G., testified for the defence. Eventually, A.S. was persuaded to return to the courtroom to complete her testimony after the trial judge reiterated the publication ban in her presence in these terms:

The order that I have made is an order extending the ban on the publication of the names of the witnesses, or information that would tend to identify witnesses, to include an order that there must be no publication of what is said today by this witness which would relate the contents of her testimony to the identity of the person who was named in the Sun report that was published this morning . . .

[42] On appeal, the appellant seeks to tender his own affidavit as fresh evidence. The appellant states that because of the publicity about the trial, a number of women who had worked at the agency contacted him. They were prepared to testify on his behalf and confirm that he was not aware that escorts were providing sexual services for money. Two of the women also had information to impugn the credibility of J.C. These women also volunteered to contact some of the other escorts and phone girls. By the end of the first week, the appellant and his counsel had arranged for "more than a dozen women" to testify in support of the defence. However, after the first Toronto Sun article appeared, all but three of the women indicated their reluctance or outright refusal to testify. They were afraid that because the trial judge had held that the Toronto Sun had not violated the publication ban, their pictures would also end up in the paper. After the second Toronto Sun article appeared, the witness who was then testifying initially refused to complete her testimony. However, when she did testify it was apparent that her frustration over what had occurred affected her ability to testify.

[43] In his affidavit, the appellant referred to five witnesses either by name or by their "stage names" and described the evidence he hoped they would have given. They were unwilling to voluntarily provide affidavits for use on the appeal or be examined. When cross-examined on his affidavit, the appellant testified that he was unwilling to subpoena the witnesses. He believed that if required to testify before the Court of Appeal the witnesses would give harmful evidence because he had forced them to testify and put them at risk of exposure in the media. In cross-examination, the appellant also confirmed that his trial counsel was acting on his instructions in not compelling any defence witness to testify.

[44] In my view, the appellant has failed to establish that his right to a fair trial was infringed. On October 13, after the first Toronto Sun story appeared, the trial judge ruled that there had been no breach of the publication ban. It was open to the trial judge to come to that conclusion. As well, at that stage counsel for the appellant had stated that he had no information that any potential defence witnesses would not come forward.

[45] On October 18, when defence counsel renewed his motion for a stay of proceedings, he stated that 25 of the potential defence witnesses he was interviewing had now stated that they would not testify voluntarily because of the press coverage. He provided no information about these witnesses. Presumably they were escorts or phone girls but counsel provided no information about their testimony or their identities. As indicated, the trial judge ruled that he was not prepared to act upon the unsupported assertions of counsel. By this time, the appellant's counsel had also indicated that he would not attempt to force any reluctant witness to testify. He did not apply to the court for assistance in obtaining the evidence of these witnesses. He did not apply for an in camera hearing or any other measure that would protect the identities of the proposed witnesses. He did not apply for subpoenas or material witness warrants. In short, counsel, on instructions from his client, made a tactical decision not to try to obtain the evidence of these reluctant witnesses.

[46] At that stage of the proceedings, the appellant's inability to make full answer and defence was caused not by the breach of the publication ban or any inaction by the trial judge but rather by tactical decisions. Absent some basis for finding that defence counsel was incompetent, and no such allegation was made in this court, there is no basis for interfering with the trial judge's ruling.

[47] That brings me to the Toronto Sun story of October 21. In my view, the trial judge should have acted promptly in view of what appeared to be a breach of the court order. That said, he did repeat the publication ban in clear terms and, as it turned out, the trial judge's failure to deal promptly with the Toronto Sun had no impact on the trial. The witness who was identified and who had not finished testifying returned and completed her evidence. Two other defence witnesses, one an escort, also testified. The appellant produced no evidence before the trial judge that any other proposed defence witnesses were unwilling to testify because of the October 21 story.

[48] This then brings me to the fresh evidence. In R. v. W. (W.) (1995), 1995 3505 (ON CA), 25 O.R. (3d) 161, 100 C.C.C. (3d) 225, this court considered the question of admission of fresh evidence where the appellants sought to have their convictions set aside by reason of their counsel's conflict of interest. Speaking for the court, Doherty J.A. held that the traditional test for admission of fresh evidence as set out in Palmer v. R. (1979), 1979 8 (SCC), [1980] 1 S.C.R. 759, 50 C.C.C. (2d) 193 did not apply where the evidence was not directed at a finding made at trial, but instead challenged the validity of the trial process. Doherty J.A. held that the evidence should be admitted in the interests of justice in order to determine whether the alleged conflict of interest resulted in a miscarriage of justice. In the end, the court nevertheless dismissed the appeal.

[49] The fresh evidence that the appellant seeks to adduce in this case is similar to the evidence adduced in W. (W.). Although it is adduced in one sense to attempt to impugn the trial judge's rulings, its primary purpose is to complete the record to demonstrate that a miscarriage of justice was occasioned by the trial judge's procedural rulings. In those circumstances, the four-part Palmer test is of limited utility. I have accordingly considered that evidence to ensure that no miscarriage of justice was occasioned. I am satisfied that there was no miscarriage of justice.

[50] The fresh evidence really adds little to the trial record. That evidence gives a little more substance to trial counsel's submissions about the evidence that was not called because of the first Toronto Sun story. However, that evidence does not impugn the correctness of the trial judge's ruling that the story did not infringe the publication ban nor put in doubt the trial judge's refusal to stay the proceedings. The fresh evidence also confirms that the decision not to attempt to compel these witnesses was a tactical decision by the appellant.

[51] There is no way to test the weight of the evidence the five witnesses might have given since they will not voluntarily submit to the court's process and the appellant adheres to his tactical decision not to attempt to compel the testimony. Counsel made no attempt to enlist the powers of this court to obtain the evidence. In my view, the appellant has not demonstrated that a miscarriage of justice resulted from the trial judge's rulings on the publication ban and the media.

[52] I would dismiss the appeal from conviction.

The sentence appeal

[53] Immediately after he entered the convictions, the trial judge required counsel to make submissions on sentence. He refused to adjourn the proceedings to allow the appellant to prepare submissions or call evidence. He did not have the benefit of a pre-sentence report. The decision to proceed immediately with sentencing was unfortunate. Although the appellant testified at the trial, the trial judge knew very little about his background except that he was 33 years of age, had no prior criminal record, had several brothers and worked for a time in his father's supply business.

[54] The fresh evidence on the appeal indicates that the appellant has been employed in the family business since 1998. This business distributes janitorial and restaurant supplies. The appellant lives with his common law spouse and they have two very young children. The appellant is the sole means of support of his spouse and children.

[55] At trial and on appeal, the appellant sought a conditional sentence of imprisonment.

[56] The appellant operated his escort agencies over a period of several years. He did not use violence or intimidation and the trial judge found that the escorts joined the service of their own free will.

[57] In seeking a conditional sentence, the appellant relies upon this court's recent decision in R. v. Barrow (2001), 2001 8550 (ON CA), 54 O.R. (3d) 417, 155 C.C.C. (3d) 362 (C.A.). In Barrow, this court indicated that a conditional sentence could be appropriate in living off the avails offences in the escort agency context where there was no evidence of coercion and violence.

[58] There are important differences between Barrow and this case. The time frame of the offences in Barrow was only a few months and the court found that the accused believed that she was acting legally. In contrast, the appellant's conduct extended over many years and the evidence showed that the appellant knew his conduct was illegal. He took elaborate steps to try and shield himself from liability for the acts of prostitution that he knew his employees were performing.

[59] In my view, the trial judge erred in principle in refusing a reasonable request by defence counsel to allow for preparation of submissions and the calling of evidence. The appellant was a first offender and the Crown was seeking a substantial custodial sentence. This court is now faced with the task of imposing an appropriate sentence with the assistance of the fresh evidence and taking into account that the appellant has been on bail pending appeal for over two years without incident. He has served almost two months of the sentence imposed by the trial judge.

[60] The length of time that the appellant operated his illegal enterprise and the scale of the operation justified a substantial sentence of imprisonment notwithstanding that the appellant had no prior criminal record. The trial judge could also properly refuse to impose a conditional sentence because of the serious aggravating factors that did not exist in the Barrow case. Having regard to the fresh evidence and the lengthy period of time that the appellant has spent on bail pending trial and pending appeal, I would reduce the sentence to 12 months' imprisonment.

Conclusion

[61] Accordingly, I would dismiss the appeal from conviction. I would grant leave to appeal sentence, allow the appeal and reduce the sentence to 12 months' imprisonment on each count concurrent. The ban on publication made by the trial judge is still in force.

Conviction appeal dismissed; sentence appeal allowed.