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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

CITATION: R. v. Lavigne, 2015 ONCA 915

DATE: 20151223

DOCKET: C59376

Juriansz, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jacqueline Lavigne

Appellant

Kashmeel McKöena, for the appellant

Greg Skerkowski, for the respondent

Heard and released orally: December 16, 2015

On appeal from the conviction entered on April 14, 2014 and the sentence imposed on September 26, 2014 by Justice Patrick J. Flynn of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals her conviction for sexual exploitation and the sentence imposed.

[2] The conviction was based on the trial judge’s finding that the appellant, a high school teacher, had sexual intercourse with the complainant, a 17-year-old student in her class, at her home on the night of October 29, 2011.

[3] The trial judge found that the appellant and her student carried on prolonged communications of a sexual nature with each other via Blackberry Messenger prior to October 29. Classmates of the complainant testified to having seen sexually explicit messages sent to him by the appellant. Two of his friends testified that they dropped him off at her house on October 29. The complainant testified that the appellant had sexual intercourse with him and he then used the appellant’s landline to call one of his friends to come and pick him up from her house. The Crown led evidence that a friend’s cellphone received a call from the appellant’s landline at the time the complainant testified he made the call. A representative of Blackberry testified that most of the messages between the appellant and complainant were no longer available, but that the available records showed that hundreds of messages had been exchanged between the appellant’s and the complainant’s devices.

[4] The trial judge concluded that the viva voce testimony of the complainant’s classmates, the technical data from Blackberry and the call logs from the phone of the complainant’s friend, all confirmed the complainant’s testimony. He rejected the defence theory that the complainant made the whole story up in order to get a passing grade and doubted that he would have been able to recruit his classmates to support his false testimony and create false technical evidence by “spoofing” the appellant’s telephone number. The trial judge accepted the complainant’s testimony “without hesitation, without doubt” and found the testimony of his classmates credible, believable and trustworthy. The appellant did not testify. The trial judge concluded that the charge was proven beyond a reasonable doubt.

[5] On appeal, the appellant repeats several of the arguments made and rejected at trial, and advances others not made at trial and not supported by the record. We find it unnecessary to deal with the specific arguments. In our view, the appellant is essentially seeking to retry the case before this court on a standard that would require the charge to be proven to an absolute certainty.

[6] The trial judge heard and saw the witnesses and it was his function to weigh the evidence, make the findings of fact and credibility, and decide the case. The appellate function is to determine whether the trial judge made any reversible error. We have not been persuaded that he did. The trial judge’s finding that the evidence, as a whole, proved the charge beyond a reasonable doubt is amply supported by the record.

[7] The appeal of the conviction is dismissed.

[8] The appellant also appeals her sentence of 13 months’ imprisonment.

[9] Counsel submits in the factum that the judge erred by “discounting and completely inversing” the weight that should have been attached to the 78 very impressive character reference letters filed on the sentencing. The judge explained that he would not use the letters to mitigate sentence because the letters “cement the very qualities that allow this kind of crime to happen. They show the position of trust and authority in spades.” We see no error.

[10] We are not persuaded that the judge made any error in principle in sentencing, and in our view, the sentence is not manifestly unfit.

[11] As the sentencing judge pointed out, teachers in our society are in a special position of trust and authority. The appellant’s conduct was not a single lapse in judgment. Prior to October 29, she had carried on a prolonged, inappropriate, sexually charged relationship with a minor student in her charge. She engaged in sexual intercourse with him while he was intoxicated.

[12] We are not persuaded that there is any basis upon which we should interfere with the sentencing judge’s discretion in his fashioning of the appropriate sentence.

[13] The sentence appeal is dismissed.

“R.G. Juriansz J.A.”

“David Watt J.A.”

“Lois Roberts J.A.”