Court of Appeal for Ontario

Date: 2018-12-13 Docket: M49885 (C66227) Judge: Watt J.A. (In Chambers)

Between

Her Majesty the Queen Respondent

and

Sivanesan Veerasingam Appellant

Counsel

Soban Ponnampaln, for the appellant

Deborah Krick, for the respondent

Heard and released orally: December 10, 2018

Reasons for Decision

[1] The appellant applies for release pending determination of his appeal to this court on convictions of child luring and communication for the purpose of prostitution with a person under 16. He was sentenced to imprisonment for a term of one year.

[2] The respondent opposes release on the basis that the appellant has failed to demonstrate that his appeal is not frivolous.

[3] At trial, the appellant did not challenge the case for the Crown which arose out of a police-posted advertisement in the "Escort" section of Backpage.com. The appellant responded to the advertisement which made it plain that his collocutor was 15 years of age. He attended at the appointed address and was promptly arrested in possession of the agreed upon fee, the condoms requested by his collocutor, and the cellphone used in their communications.

[4] After conceding that the Crown had proven the essential elements of the offence beyond a reasonable doubt, trial counsel sought a stay of proceedings on the basis of entrapment. The trial judge was satisfied that no case of entrapment had been made out, declined to enter a stay of proceedings on that ground and proceeded to sentence the appellant.

[5] In his notice of appeal the appellant advances two grounds:

i. The trial judge erred by not taking into consideration that a key issue in Mr. Veerasingam's trial namely the interpretation and application of s. 172.1(4) of the Criminal Code was at the time of the trial and is currently being considered by the Supreme Court of Canada in R. v. Morrison. The judgment in R. v. Morrison has been reserved and the decision will be informative on the proper application of s. 172.1(4) of the Criminal Code; and

ii. Since the Supreme Court of Canada's decision in R. v. Morrison would significantly impact the application of the law in Mr. Veerasingam's trial, Mr. Veerasingam is unnecessarily being held in custody currently. If the Supreme Court of Canada in R. v. Morrison finds that the requirements set out in s. 172.1(4) infringes s. 7 of the Charter, Mr. Veerasingam's current custody would be manifestly unjust.

[6] Despite the modest threshold to be met in establishing that an appeal is not frivolous, I am not satisfied that the materials filed meet the test.

[7] That R. v. Morrison is currently reserved in the Supreme Court of Canada is an undeniable fact. The simple fact that judgment in that case is reserved says nothing about the merits of this appeal in light of the evidentiary record developed at trial. The decision of the Supreme Court of Canada in Morrison will deal with the interpretation of s. 172.1(4) of the Criminal Code. It may be of some modest relevance to the appellant's conviction of child luring although this seems questionable on the evidence adduced at trial. But it is of no moment to the communication offence of s. 286.1.

[8] The notice of appeal raises no issue with respect to the conviction of communication for the purpose, an offence that was complete without the necessity of attendance at the place of the proposed assignation.

[9] On the basis of the materials filed I am not satisfied that the appellant has met his onus to demonstrate that the appeal is not frivolous.

[10] The application is dismissed.

"David Watt J.A."