W A R N I N G

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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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).

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

CITATION: R. v. Nelson, 2007 ONCA 684

DATE: 20071009

DOCKET: C42472

WEILER, MOLDAVER and ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

DELROY DONOVAN NELSON

Appellant

Counsel

Matthew McGarvey for the appellant, Delroy Donovan Nelson

Roger Pinnock for the respondent, the Crown

Heard: October 1, 2007

On appeal from the conviction entered on September 27, 2001, and the sentence imposed on March 5, 2004, by Justice Albert J. Roy of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

1. NATURE OF APPEAL

[1] The appellant appeals his convictions for exercising influence for the purpose of prostitution, living off the avails of prostitution, two counts of common assault and one count of sexual assault.

[2] He was acquitted of one count of procuring for the purposes of prostitution. In addition, the appellant pled guilty to three counts of failure to comply with a recognizance.

[3] The appellant received a global sentence of eight years which was reduced by reason of time served to a global sentence of two years concurrent. In addition, the trial judge declared the appellant to be a long-term offender and a supervision order for the maximum ten years was imposed. The appellant appeals the validity of the long-term offender designation and the length of the supervision order.

[4] In relation to conviction, the appellant raises two grounds of appeal respecting evidentiary issues that arose during the trial and two grounds relating to the charge to the jury.

2. FACTS

[5] The facts may be briefly stated. The charges relate to an eight-day period in the fall of 2000. The complainant was a long-time drug addict who had known, used drugs with, and purchased drugs from the appellant for about a year. In September, 2000, she began making money as a prostitute in order to support her addiction. Her evidence was that the appellant procured her to become a prostitute and controlled her activity; he also physically and sexually assaulted her, took her earnings, and provided her with drugs. On October 5 she went to the police. The appellant was arrested several days later. The complainant provided the police with a videotaped statement describing the appellant’s criminal acts.

3. ISSUES

A. The Evidentiary Issues

(i) Should a prior consistent statement from the complainant have been admitted?

[6] At trial, the complainant testified that she had an injury on her lip caused by the appellant and one on her cheek caused by a customer.

[7] The appellant’s counsel cross-examined her on what she had said about her video statement at the preliminary inquiry and suggested to her that she had then said both injuries were caused by the appellant. The trial judge permitted the Crown on re-examination to refresh the complainant’s memory by referring her to another portion of her video statement which was consistent with her testimony at trial. The appellant submits that the re-examination was improper.

[8] We are not certain that the re-examination was improper in these circumstances. Counsel’s re-examination clarified for the jury that the complainant, on her videotaped statement, had made two statements, one contradictory, and one consistent with her evidence at trial.

[9] No objection to the Crown’s re-examination was raised at trial. The trial judge adequately charged the jury respecting prior inconsistent statements. He did not refer the jury to the Crown’s re-examination.

[10] On any version, the complainant testified that the appellant had used physical force upon her against her will. Thus, the effect of the inconsistency did not affect the elements of the offence of common assault, a lesser offence than the others charged. What was alleged, an additional mark on the cheek, was not significantly more serious than one mark on the lip. In the end, if there was an inconsistency, it was minor and in our view, it did not undermine the complainant’s credibility as a whole. We would dismiss this ground of appeal.

(ii) Should evidence of later drug use and prostitution by the complainant have been admitted or was it, as the trial judge ruled, collateral.

[11] At issue is the complainant’s testimony at trial that after the eight days the charges covered, she changed her life and stopped using drugs.

[12] As part of his defence, the appellant led evidence that the complainant was a prostitute before meeting him and that she had a motive to fabricate her testimony. The motive was two-fold: (1) that she was jealous of the appellant’s new girlfriend and (2) that she was trying to get her children back. The appellant also sought to adduce evidence that the complainant was still using drugs and working as a prostitute following her eight-day relationship with the appellant.

[13] The trial judge ruled that the proposed evidence concerning the complainant’s after-the-fact conduct was not relevant to the issues before the jury – namely, whether the appellant had procured the complainant to become a prostitute, lived off the avails of her trade, and physically or sexually assaulted her – and that in essence, it amounted to a collateral attack on her credibility. In so concluding, the trial judge applied the correct legal principles and we can find no fault with his analysis. In the circumstances, we are not persuaded that he erred in rejecting the proposed evidence.

B. The issues respecting the charge to the jury.

(i) Was the charge to the jury adequate?

[14] The appellant submits that the trial judge erred by failing to explain the elements of each offence, to relate the evidence to each count, and to properly outline the appellant’s position. Further, he says, the jury may have been under the impression that it could find the appellant guilty on the charge of living off the avails merely if it found that the complainant was buying drugs from the appellant with money earned from prostitution. Finally, the appellant submits that although the appellant’s position was a complete denial of the allegations, the judge told the jury that the defence position was that the evidence was not sufficient to prove the charges beyond a reasonable doubt.

[15] We disagree with the appellant’s submissions. The appellant did not testify nor did he give a statement to the police. No objection was taken to the charge by the appellant’s then trial counsel. While we agree that the trial judge could have gone into somewhat more detail, the trial judge adequately explained the elements of the offences and the position of the defence to the jury. Considering the rest of the charge and the fact that this was a brief and straightforward trial, it is inconceivable that the jury did not understand the appellant’s position.

(ii) Was a Vetrovec warning required?

[16] The complainant admitted to having been a drug dealer, cocaine addict and prostitute; to having given a false name to police two times; and robbing a man at knife point. As a result, the appellant submits the trial judge should have given the jury a Vetrovec warning.

[17] A Vetrovec warning was not requested at trial and no objection was made to the charge on this basis. The trial judge instructed the jury that it had to proceed with care in considering the complainant’s evidence and he thoroughly canvassed the complainant’s credibility. Had he been asked to provide a Vetrovec instruction, he no doubt would have been concerned about its impact on the defence since a number of witnesses who testified for the defence also had criminal records and similar backgrounds. In the end, we are not satisfied that this is a case where a Vetrovec caution was mandatory.

[18] We would dismiss this ground of appeal.

[19] The appeal as to conviction is dismissed.

C. The Sentencing Issues

(i) Application under Part XXIV of the Criminal Code where the consent of the A-G was premised upon a charge for which the appellant had been acquitted.

[20] An application under Part XXIV of the Code requires the Attorney General’s consent before proceeding. The consent referred to the appellant’s conviction for procuring someone to become a prostitute. This was the only count on which the accused had been acquitted. The consent also referred to seven of the crimes for which the appellant was convicted.

[21] The appellant submits that a proceeding under this Part of the Code is one in which strict compliance with the requirements of the Code should be insisted upon. In the absence of a proper consent, he submits the trial judge had no jurisdiction to hear the application.

[22] The Attorney General’s consent was premised on eight prior convictions, of which one was misdescribed. The charge that was misdescribed is not one that would form a predicate offence on which the application could be brought. Moreover, an equally serious charge, the offence of exercising control, was omitted from the consent document.

[23] The section simply requires that the Attorney General’s consent be obtained. It was. No objection was made at trial to the form of the consent. In fact, both Crown and defence agreed that the evidence supported a finding that the appellant was a long-term offender. We would not give effect to this ground of appeal.

(ii) Is the length of the long-term offender designation appropriate?

[24] One expert’s opinion was that the appellant’s main problem was substance abuse and that a minimum of five years of treatment was necessary. The appellant submits he had been in custody for three years at the time of sentencing and had not been using any drugs. At the time of release, he would have been drug free for five years. This period represented the greatest risk of recidivism. Therefore, he submits the maximum length of supervision order was inappropriate.

[25] The length of the order is highly discretionary. There was evidence that the appellant was at high risk to reoffend over a ten year period. The appellant has not suggested that there was some error in principle made. There is nothing that brings this order manifestly outside the proper range.

[26] The appeal is dismissed.

“Karen M. Weiler J.A.”

“M.J. Moldaver J.A.”

“Paul S. Rouleau J.A.”