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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Mascoe, 2020 ONCA 706

DATE: 20201106

DOCKET: C67539

Gillese, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lascelles Mascoe

Appellant

Lascelles Mascoe, acting in person

Hannah Freeman, for the respondent

Heard by videoconference: November 2, 2020

On appeal from the conviction entered on May 28, 2019 and the sentence imposed on September 19, 2019, by Justice Edwin B. Minden of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1] Following a judge alone trial, Mr. Mascoe was convicted of receiving a material benefit from the commission of a s. 286.1(1) offence (prostitution) and exercising control for the purpose of facilitating a s. 286.1(1) offence (prostitution).

[2] At the sentencing hearing, the Crown sought a sentence of eight years. Defence counsel sought a sentence in the range of 15 months to two years. Defence asked that pre-trial custody be credited at 1.5:1, noting that Central East Correctional Centre (“Central East”) was in a poor state and Mr. Mascoe was detained there for the entire pre-trial period.

[3] Mr. Mascoe was sentenced to five years’ imprisonment less pre-trial custody. He spent 502 days in pre-trial custody and given credit, at the rate of 1.5:1, for 753 days (2 years and 1 month). Enhanced credit was given because of the labour disruptions at Central East during the period of pre-trial custody which led to, among other things, Mr. Mascoe being deprived of opportunities to shower or sleep in a cell with a bed.

[4] Mr. Mascoe appeals against conviction and sentence. At the oral hearing of the appeal, duty counsel advised the panel that he was not in a position to assist. Mr. Mascoe then made oral submissions.

The Conviction Appeal

[5] On the conviction appeal, Mr. Mascoe argues that due to the inconsistencies in the complainant’s testimony, it was an error for the trial judge to have accepted her testimony. He also argues that the trial judge failed to consider the complainant’s testimony in which she stated that she did not receive a material benefit and was free to “come and go” as she pleased. Further, he argues that the trial judge misapprehended the evidence about whether the activities took place in one hotel or two.

[6] The trial judge gave careful reasons explaining that, while he treated the complainant’s testimony with caution because of its inconsistencies, he nonetheless found her credible and reliable. There is no basis to interfere with the trial judge’s credibility determination.

[7] As for the submission that Mr. Mascoe did not exercise control over the complainant, we see no basis on which to interfere with the trial judge’s findings to the contrary. It is correct that, on the complainant’s testimony, Mr. Mascoe did not use violence against her. However, he did exercise control for the purpose of facilitating her prostitution. Mr. Mascoe drove the complainant to retrieve clothing, to the mall to purchase items, and to the first hotel to begin work. He monitored her exchanges with clients. The complainant turned over all the money she earned to Mr. Mascoe. On at least one occasion, he told her she could not take a break. He berated her for not working as hard as she should be. He also controlled her ability to see her family and would not allow her to visit them without him.

[8] On the matter of one hotel or two, the trial judge found, on Mr. Mascoe’s own testimony, that there was attendance at two hotels.

[9] The trial judge’s findings were carefully explained and grounded in the evidence.

The Sentence Appeal

[10] On his sentence appeal, Mr. Mascoe argues that five years’ incarceration is outside the range because there was no violence or intimidation involved. He also argues that he should have been given greater credit for pre-trial custody because of the harsh conditions at Central East and the poor conditions that resulted from the lockdowns. Fresh evidence was filed, on consent, relating to the lockdown; it does not materially change the facts before the sentencing judge on this matter.

[11] We see no error in the sentence imposed.

[12] Mr. Mascoe has a lengthy criminal record including two prior convictions for sex trade offences. He was on probation for a similar offence at the time of his arrest on these charges. The evidence showed that Mr. Mascoe has no interest in rehabilitation as this work is his “livelihood”.

[13] Nor do we see any basis on which to interfere with the sentencing judge’s exercise of discretion in awarding 1.5:1 credit for the period Mr. Mascoe spent in pre-trial custody. The sentencing judge was fully alive to the harsh conditions in Central East caused by the labour disruption and he gave thoughtful, careful reasons for the amount of credit to be given as a result of them.

Disposition

[14] Accordingly, the appeal against conviction is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed.

“E.E. Gillese J.A.”

“P. Lauwers J.A.”

“M.L. Benotto J.A.”