Court of Appeal for Ontario

Date: 2019-10-01 Docket: C64675

Judges: Huscroft, Paciocco and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Virushan Premanathan Appellant

Counsel

Mark Halfyard, for the appellant

Jennifer Strasberg, for the respondent

Heard

September 26, 2019

Appeal Information

On appeal from the conviction entered on September 8, 2017 by Justice Donald J. Halikowski of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of communicating with a person under the age of 18 to facilitate an offence of obtaining sexual services for consideration, communication with a person under the age of 18 to facilitate the offence of invitation to sexual touching, and breach of recognizance. He appeals only the communication convictions.

[2] There is no question that the appellant sent many text messages to the undercover officer who posed as a 15-year old escort. But the appellant testified that this was a mistake — that he mistakenly texted the wrong number, thinking he had already broken off the conversation with the escort once he learned that she was 15 years old. He says that he intended to contact a different escort about a different sexual service.

[3] The appellant submits that the trial judge made unreasonable findings and misapprehended the relevant evidence. The appellant also submits that the trial judge erred in failing to apply R. v. W. (D.), [1991] 1 S.C.R. 742 (S.C.C.) and in failing to consider the appellant's prior and subsequent communications in assessing reasonable doubt.

[4] We disagree.

[5] The trial judge found that the 12-second timeframe between the relevant text messages was inadequate to contact and communicate with another escort, rather than continue messaging the undercover officer. This finding was based not simply on the appellant's typing speed but also on several additional tasks the appellant would have to have performed in order to have commenced communications with another escort.

[6] We accept that there is a problem with the nature of the analysis undertaken by the trial judge. However, in the context of the evidence as a whole, it is not fatal to the trial judge's conclusion.

[7] The timing of the text messages was not the only reason the trial judge gave for rejecting the appellant's evidence as not credible. All of the appellant's conversations with prospective escorts began with a statement of the sexual service he desired or an inquiry as to "menu and rate". In contrast, the conversation he argued was with a new escort began by the appellant asking, "U do car call"? It was open to the trial judge to conclude that the appellant's conversation with the undercover officer was a continuous one.

[8] Although the trial judge used the word "searched" in describing tasks he thought that the appellant needed to complete in order to call a new escort, he understood that the appellant was using two cellphones and that the escort's phone number was already on the display of the other cell phone, and that as a result, no significant time for searching was required.

[9] The trial judge did not refer to W.(D.). It would have been better if he had done so, but his failure to do so is not fatal to the convictions. What matters is that he required that the charges be proven beyond a reasonable doubt, and we are satisfied that he did so.

[10] This was a short trial and the issues were not complicated. The trial judge rejected the appellant's evidence and explained why he did so. He found that the appellant was not credible. He reviewed the evidence, including text messages sent prior to and during the appellant's conversation with the undercover officer, and clearly rejected in its entirety the appellant's argument that he thought he had broken off contact with the undercover officer and selected a new escort. This finding was open to him on the evidence, and there is no basis to interfere with it.

[11] The appeal is dismissed.

Grant Huscroft J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.