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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Bloomfield, 2016 ONCA 447

DATE: 20160607

DOCKET: C58534

Sharpe, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rebekah Bloomfield

Appellant

Boris Bytensky, for the appellant

Gillian Roberts, for the respondent

Heard: June 6, 2016

On appeal from the conviction entered on October 15, 2013 and the sentence imposed on January 6, 2014 by Justice Donald K. MacKenzie of the Superior Court of Justice, sitting with a jury.

By the Court:

[1] The appellant was convicted by a jury of procuring a 14-year-old female to become a prostitute contrary to what was then s. 212 (1)(d) of the Criminal Code. She was sentenced to 18 months’ imprisonment.

[2] She appeals the conviction and seeks leave to appeal her sentence.

Conviction Appeal

(1) Did the trial judge err in his instructions to the jury regarding the elements of s. 212 (1)(d)?

[3] The appellant submits that the trial judge erred in his instructions as to the elements of this offence.

[4] We see no error in relation to actus reus.

[5] The appellant’s principal complaint relates to the instruction on mens rea. At trial, both Crown and defence agreed that the trial judge should instruct the jury that if the appellant believed the complainant was already a prostitute, the appellant would lack the necessary mens rea for this offence. We agree with the appellant that the trial judge erred in instructing the jury that the appellant’s belief had to be reasonable. However, we also agree with the Crown that in the context of this case, the error was harmless.

[6] There was no evidence that the complainant had previously worked as a prostitute. The appellant did not testify that she entertained the belief that the complainant was already a prostitute and there was nothing else in the evidence adduced at trial to suggest that she might have entertained such a belief. In the absence of some evidence to support the belief, the defence could not succeed without reasonable grounds to support it. In these circumstances, the instruction that the appellant’s belief had to be reasonable was in error but it did not cause any substantial wrong or miscarriage of justice.

(2) Unreasonable verdict

[7] In our view there was evidence upon which a properly instructed jury could convict the appellant and we do not agree with the submission that the verdict was unreasonable.

[8] The complainant testified that she received a Facebook message from someone called “Beka”. While the complainant could not say for certain that that message had been sent by the appellant, no objection was taken to the admissibility of this evidence and the jury was entitled to take it into account. We do not agree that it was hearsay.

[9] Moreover, there was a substantial body of additional evidence from which it could be inferred that the appellant had played a role in persuading or enticing the complainant to become a prostitute. There was some evidence that the appellant accompanied her male co-accused on an out call with another prostitute on what may be described as a grooming exercise. The appellant also accompanied her co-accused to drive the complainant, who had not yet prostituted herself, from Ottawa to Mississauga. During that journey, the appellant gave the complainant instructions about how to commit acts of prostitution. The complainant’s first acts of prostitution took place in a room booked by the appellant.

[10] In our view, taken as a whole, the evidence provided a basis upon which the jury could conclude that the appellant had, in concert with her co-accused, procured this very young complainant to become a prostitute.

(3) Trial judge’s comment on the appellant’s failure to testify.

[11] We do not agree with the submission that the trial judge’s comment that “normally” an accused who points the finger at her co-accused will take the stand amounted to an impermissible reference to the appellant’s failure to testify. The appellant’s trial counsel raised no objection and, indeed, the trial judge’s comment was made to deal with an objection made by counsel for the co-accused to something the appellant’s trial counsel had said in her closing. In our view, while perhaps unfortunate and unnecessary, this comment did not amount to an improper reference to the fact that the appellant chose not to testify, nor did it suggest that any reliance could be placed on the fact that she failed to testify.

Sentence Appeal

[12] We do not agree that the sentence imposed was unfit or that the trial judge failed to take into account the fact that the appellant was a youthful first offender. The trial judge specifically noted that rehabilitation was an essential objective and that an offender should not be deprived of her liberty if less restrictive measures were appropriate. Given the very young age and vulnerability of the complainant, this was a serious offense. The trial judge was entitled to impose a sentence that emphasized deterrence and denunciation and to reject defence counsel’s submission that a conditional sentence was appropriate.

Disposition

[13] Accordingly the appeal from conviction is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.

Released: “RJS” June 7, 2016

“Robert J. Sharpe J.A.”

“David Watt J.A.”

“David Brown J.A.”