Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 20210127 Docket: C67930

Hoy, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Terrell Ochrym Appellant

Counsel: Terrell Ochrym, acting in person Dan Stein, appearing as duty counsel Nicole Rivers, for the respondent

Heard: December 8, 2020 by video conference

On appeal from the conviction entered on August 21, 2019 and the sentence imposed on December 12, 2019 by Justice Alexander Sosna of the Superior Court of Justice, with reasons at 2019 ONSC 4864.

By the Court:

I. Overview

[1] The appellant, Terrell Ochrym, was convicted of (1) a particularized count that, contrary to subsection 286.3(1) of the Criminal Code, R.S.C. 1985, c. C-46, he did exercise control, direction or influence over the movements of the complainant, a person who offers or provides sexual services for consideration, for the purpose of facilitating an offence under subsection 286.1 of the Criminal Code; and (2) knowingly advertising an offer to provide sexual services for consideration, contrary to s. 286.4 of the Criminal Code.

[2] He was sentenced on December 12, 2019 to a period of custody of two and a half years and given credit for two years of pretrial custody, leaving six months to serve, and two years’ probation following the period of custody. Ancillary orders imposed included a 20-year SOIRA order under s. 490.013 of the Criminal Code. The appellant has served the custodial portion of his sentence.

[3] On behalf of the appellant, duty counsel argues that the trial judge erred in law by convicting the appellant under s. 286.3(1) simply because he facilitated the complainant in providing sexual services and did not give proper effect to the requirement that he have exercised control, direction or influence over the movements of the complainant.

[4] Duty counsel also argues that the trial judge convicted the appellant under s. 286.4 on a theory of liability disavowed by the Crown, without giving the appellant the opportunity to make submissions. This, duty counsel argues, resulted in prejudice and, accordingly, his conviction cannot stand.

[5] For the following reasons, we accept the arguments advanced by duty counsel, allow the appeal, and order a new trial. Because we allow the appeal on this basis, it is unnecessary for us to address the allegation of ineffective assistance of counsel which the appellant advanced without the assistance of duty counsel. Moreover, since the appeal of the s. 286.3(1) conviction focused on whether the trial judge erred in applying the actus reus elements of the offence, we will not address the requisite mens rea of the offence in these reasons.

II. The Relevant Sections

[6] Section 286.1(1) of the Criminal Code makes obtaining for consideration, or communicating with anyone for the purpose of obtaining for consideration, the sexual services of a person an offence.

[7] For ease of reference, ss. 286.3(1) and 286.4 provide as follows:

286.3(1) Procuring – Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

286.4 Advertising sexual services – Everyone who knowingly advertises an offer to provide sexual services for consideration is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction. [Emphasis added.]

III. Background

[8] At trial, the appellant faced six charges arising out of his role in the provision of sexual services by the complainant over four weekends. He was convicted of two of them. We review only the portions of the trial judge’s reasons with respect to, or relevant to, the two charges of which he was convicted, or which provide context.

[9] The complainant and the appellant testified at trial, as did Mr. Oral Richards. The complainant was 17 years of age at the time of the alleged offences. She was romantically involved with and devoted to Mr. Richards, whom she knew by another name and who purported to be 25 or 26 years old. Mr. Richards had a wife and children. He had a lengthy criminal record; was facing pending drug and prostitution-related charges, with an attendant risk of deportation; and had financial problems.

[10] Mr. Richards was originally co-accused with the appellant, but the charges against him were withdrawn after he provided a statement to police and testified at the appellant’s preliminary inquiry. The trial judge approached Mr. Richards’ testimony with caution.

[11] The complainant testified that she proposed engaging in sex work because she believed she needed money to help her family and Mr. Richards. But, according to her and Mr. Richards, neither of them had experience with sex work. She was under 18 and could not rent a motel room in her name. Mr. Richards purportedly did not have the necessary identification to rent a hotel room. They had little money and no car.

[12] The complainant, Mr. Richards, and the appellant all testified that Mr. Richards asked the appellant for help. The appellant was engaged in drug trafficking and had a lengthy criminal record. At the time of trial, the appellant was 40 years of age.

[13] The complainant provided sexual services for consideration at out-of-town motels on four weekends, from March 3, 2017 through to April 29, 2017. The complainant, Mr. Richards, and the appellant all testified that the appellant picked the complainant up at her home and drove her. The first two weekends, Mr. Richards also accompanied her in the car.

[14] The trial judge approached the complainant’s evidence with caution, but accepted her evidence about what the appellant did, in addition to driving her:

[The complainant] testified that the routine was the same at all motels. Upon arriving, she stayed in the car until the room was booked. Mr. Ochrym then brought her to the room using back entrances thus avoiding the front desk. Once in the room, [the complainant] would take provocative photos of herself and post them on the internet. Once posted, she received calls from customers who attended the motel room and paid for her sexual services. During her stays, [the complainant] texted Mr. Ochrym from the room for food or necessities that he provided on request.

[15] At para. 20 of his reasons, the trial judge described the issue before him in relation to the charge of exercising control, direction or influence as follows:

…has the Crown proven beyond a reasonable doubt that [the appellant] exercised control, direction or influence over [the complainant’s] movements to facilitate her to offer to provide sexual services for consideration?

[16] The trial judge concluded, at para. 84, that the appellant “did coordinate and provide [the complainant] with the means to provide sexual services for consideration.”

[17] The exercising control, direction or influence charge against the appellant was laid pursuant to s. 286.3(2), applicable where the complainant is under 18 years of age. The trial judge found that the complainant associated with persons who appeared to be well beyond their teen years and represented herself to clients as being 18 years of age. He was not satisfied beyond a reasonable doubt that the appellant knew or was willfully blind that the complainant was not yet 18 years of age and, as such, did not take all reasonable steps to ascertain her age.

[18] Accordingly, the trial judge acquitted the appellant of the offences of procuring the complainant contrary to s. 286.3(2) and convicted him of the included offence of s. 286.3(1), which makes no reference to age. The trial judge’s reasons for sentence indicate that he found that the appellant exercised direction and influence, but not control: “This Court is left with no reasonable doubt that the complainant provided sexual services while under [the appellant’s] influence and direction.”

[19] However, the trial judge found the appellant not guilty of the separate charge of recruiting, holding, concealing or harbouring the complainant, contrary to s. 286.3(1). He found there was no evidence that the appellant recruited the complainant:

To the contrary, it was [the complainant] who with the assistance of Mr. Richards that sought out [the appellant] to assist them in the prostitution scheme. Nor is there any evidence that thereafter [the appellant] pressured, controlled or encouraged [the complainant] to sell her sexual services for consideration even after Mr. Richards allegedly withdrew from the scheme. [Emphasis added]

[20] Further, the trial judge found that the Crown’s submission that the appellant had held, concealed or harboured the complainant was contrary to the complainant’s evidence that the appellant never restricted her movements and at all times she was free to leave the motels at any time she wished. Indeed, the trial judge noted, on the weekend of April 7, 2017, when the complainant’s mother found the postings, advertising the complainant’s sexual services on the website backpage.ca (“Backpage”), the complainant cut short her weekend and hired a taxi that brought her home.

[21] The complainant testified that she gave Mr. Richards part of the monies that she earned. No evidence was introduced that the appellant received any money from the complainant’s provision of sexual services and the trial judge found the appellant not guilty of the charges under s. 286.2, i.e. receiving a financial or other material benefit, knowing that it was obtained by or derived directly or indirectly from the commission of an offence under ss. 286.1(1) or 286.1(2).

[22] The appellant admitted that he let Mr. Richards use his cell phone and Backpage account to advertise sexual services to be provided by the complainant for consideration. The trial judge also accepted that the complainant, directly and through Mr. Richards, sent photos of the complainant in lingerie, in sexual poses, to the appellant’s phone.

[23] Based on this evidence, the trial judge found the appellant guilty of knowingly advertising an offer to provide sexual service for consideration by posting an advertisement on Backpage, contrary to s. 286.4.

IV. The Parties’ Positions in Relation to the Conviction Under S. 286.3(1)

[24] In R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, the court concluded the terms “control, direction or influence” in the actus reus of the human trafficking offence in s. 279.01(1) and the procuring offence in s. 286.3(1) of the Code are disjunctive and have different meanings.

[25] Duty counsel and crown counsel both point to the following passage at para. 47 of Gallone:

Consistent with R. c. Perrault, [1997] R.J.Q. 4 (C.A. Que.), 113 C.C.C. (3d) 573 I would define “exercises influence” over the movements of a person for the purposes of s. 279.01(1) as something less coercive than “exercises direction”. Exercising influence over a person’s movements means doing anything to affect the person’s movements. Influence can be exerted while still allowing scope for the person’s free will to operate. This would include anything done to induce, alter, sway, or affect the will of the complainant. Thus, if exercising control is like giving an order that the person has little choice but to obey, and exercising direction is like imposing a rule that the person should follow, then exercising influence is like proposing an idea and persuading the person to adopt it. [Citation omitted.]

[26] Duty counsel argues that the trial judge’s factual findings do not support his conclusion that the appellant exercised control, direction or influence over the complainant. In particular, he points to the trial judge’s findings that the complainant sought out the appellant to assist in the prostitution scheme, that there was no evidence that the appellant pressured, controlled or encouraged the complainant to sell her sexual services, and that the complainant was free to leave the motels at any time she wished. Duty counsel argues that the trial judge’s factual finding that the appellant “did coordinate and provide [the complainant] with the means to provide sexual services for consideration” does not amount to exercising control, direction or influence over her movements within the meaning of those terms in s. 286.3(1) of the Code. Moreover, he argues, the evidence cannot support a finding that the appellant exercised control, direction or influence over the appellant’s movements. All the appellant did was to facilitate the complainant’s (or the complainant and Mr. Richard’s) scheme for the complainant to sell sexual services.

[27] Crown counsel focuses on the second sentence in para. 47 of Gallone: “Exercising influence over a person’s movements means doing anything to affect the person’s movements.” Crown counsel points to the complainant’s evidence, which the trial judge accepted, that the appellant drove her to the motels, booked the motels, brought her to the rooms using back entrances, and provided her with food and other necessities on request when she was at the motels. Crown counsel argues that coordinating and providing the complainant with the means to provide sexual services for consideration affected where the complainant went and how she got there and, accordingly, the trial judge correctly found that the appellant exercised influence over the movements of the complainant.

[28] Further, Crown counsel submits that this broad interpretation of “exercise influence” is consistent with the purpose of s. 286.3, as described by the court in R. v. Joseph, 2020 ONCA 733, at para. 90: “Parliament enacted these provisions in order to eradicate prostitution to the extent possible while largely immunizing the sellers from prosecution.”

V. Analysis in Relation to the Conviction Under S. 286.3(1)

[29] We agree with duty counsel that the trial judge’s factual finding that the appellant “did coordinate and provide [the complainant] with the means to provide sexual services for consideration” does not, of itself, support the conclusion that the appellant exercised control, direction or influence over her movements within the meaning of those terms in s. 286.3(1) of the Code. In convicting the appellant under s. 286.3(1) of exercising discretion and influence, the trial judge erred in determining the actus reus of the offence by focusing solely on what the appellant did, without regard to the nature of the relationship between the appellant and the complainant, and the impact of the appellant’s conduct on the complainant’s state of mind. Sometimes, the nature of the relationship and the impact of the accused’s conduct on the complainant’s state of mind will be evident from what an accused said or did and what the complainant said or did in response. But that is not the case here.

[30] The statement at para. 47 of Gallone that “[e]xercising influence over a person’s movements means doing anything to affect the person’s movements” cannot be read in isolation. The balance of para. 47 and para. 50, reproduced below, indicate that in considering whether what an accused did amounted to exercising control, direction or influence over the movements of a complainant, regard must be had to the nature of the relationship between the accused and complainant:

…all these residual terms – “exercises control, direction or influence” – evoke a scenario in which a person, by virtue of her or his relationship with the complainant, has some power – whether physical, psychological, moral or otherwise – over the complainant and his or her movements. As stated in A Handbook for Criminal Justice Practitioners on Trafficking in Persons, (Ottawa: Department of Justice, 2015), which was developed by the Federal/Provincial/Territorial Working Group on Trafficking in Persons, these residual terms characterize “the nature of conduct in terms of the relationship between the accused and the victim in relation to the victim’s mobility”: at p. 20. In other words, by virtue of the relationship between the accused and the complainant, the accused was in a position or had the ability to control, direct or influence the movements of the complainant. However, as already stated, the terms “control”, “direct” and “influence” involve different degrees of coercion[.]

[31] The meaning Gallone ascribes to “exercise of control, direction or influence” covers a wide range of intentional conduct and is consistent with the purpose of s. 286.3, as articulated in Joseph.

[32] In Joseph, the court, among other things, rejected the trial judge ‘s definition of “harbour” in s. 286.3 as to “secretly shelter and protect”. The court concluded that “harbour” in s. 286.3 includes the simple provision of shelter, whether secretly or not. The court observed, at para. 90, that Parliament enacted s. 286.3 and the other commodification of sexual services provisions “in order to eradicate prostitution to the extent possible while largely immunizing the sellers from prosecution.” However, the interpretation of the section was supported by the statute. The court’s interpretation of “harbour” was consistent with the meaning of word used in the French version of the section – “héberge” – and, as the court noted at para. 85, supported by the presumption against redundancy. To avoid tautology, the court reasoned, “harbour” must mean something other than “conceals”.

[33] Had Parliament intended s. 286.3(1) to criminalize any conduct affecting a complainant’s movements that facilitates the provision of sexual service for consideration, it would have done so more clearly. For example, s. 286.4 provides that it is an offence to knowingly advertise an offer to provide sexual services for consideration. Parliament did not provide that driving a sex worker to a motel or booking the motel where the worker provides sexual services for consideration is an offence. Rather, as noted above, Parliament used terms which require consideration of whether because of the relationship between the accused and the complainant, the accused was in a position or had the ability to, and did, exercise control, direct or influence the movements of a person who provides sexual services for consideration. Some regard must be had to the nature of the relationship between the accused and the complainant. Yet the trial judge failed to do so.

[34] In convicting the appellant under s. 286.3(1) of exercising direction and influence, the trial judge thereby erred in examining the actus reus of the offence by focusing solely on what the appellant did, without regard to the nature of the relationship between the appellant and the complainant.

[35] It is possible that had the trial judge turned his mind to the nature of the relationship he may have found the actus reus of the offence to have been satisfied. There was evidence before him about the nature of relationship between the appellant and the complainant. The appellant was a middle-aged man experienced in the selling of sexual services and the complainant was an impressionable and inexperienced teenager. The appellant had some financial means and resources, whereas the complainant had none. The appellant was involved in drug trafficking with Mr. Richards, whom the complainant sought to please and who benefitted financially from the sale of the complainant’s sexual services. The appellant’s drug customers included sex workers. Arguably, a reasonable inference from the nature of the relationship between the appellant and the complainant is that the appellant’s conduct impacted the complainant’s state of mind, and the appellant accordingly exercised influence over her movements when he coordinated and provided her with the means to provide sexual services for consideration.

[36] However, this outcome is not assured. The relationship between the complainant, Mr. Richards, and the appellant was – to put it mildly – complex. The trial judge approached the complainant’s and Mr. Richards’ evidence, minimizing Mr. Richards’ involvement and implicating the appellant as the main facilitator of the sex work, with great caution. While the evidence could support a finding that the appellant exercised influence over the movements of the complainant under s. 286.3(1), given the trial judge’s finding that the appellant did not encourage the appellant to sell her sexual services for consideration in relation to the separate charge of recruiting, holding, concealing or harbouring the complainant contrary to s. 286.3, and the trial judge’s cautious approach to the complainant and Mr. Richards’ evidence, it is unclear that, having regard to the nature of the relationship between the appellant and the complainant and the impact of the appellant’s conduct on the complainant’s state of mind, the trial judge would have found the appellant exercised influence over the movements of the complainant. We say this appreciating that there is a difference between encouraging someone to sell sexual services for consideration and exercising influence over the movements of a person who offers or provides sexual services for consideration.

[37] We turn to the conviction under s. 286.4.

VI. The Conviction Under S. 286.4

[38] We agree with duty counsel that the trial judge erred by convicting the appellant under s. 286.4 on a theory of liability disavowed by the Crown, without giving him notice and the opportunity to respond to the appellant, and that this resulted in prejudice.

[39] The closing submissions were made in writing. In its submissions, the Crown argued that the appellant’s position that he allowed the complainant and Mr. Richards to use his Backpage account “does not make sense and cannot be accepted”. Relying on the evidence of the complainant and Mr. Richards, the Crown’s theory was that the appellant used his own Backpage account to post ads for the complainant. That is, he actually committed the offence in s. 286.4.

[40] The appellant’s conviction under s. 286.4 rests on the trial judge’s finding that the appellant permitted Mr. Richards, upon request, to use the appellant’s phone and Backpage account to advertise sexual services to be provided by the complainant for consideration. In other words, the trial judge found that the appellant aided Mr. Richards to commit an offence under s. 286.4.

[41] The appellant’s reply submission responded to the Crown’s argument that he had posted the ads. Duty counsel submits that the appellant’s trial counsel did not engage on the issue of party liability in its reply to the Crown’s written submissions because the Crown had disavowed that theory of liability. Duty counsel further submits that there is a strong argument that the mens rea requirement for aiding was not satisfied.

[42] Crown counsel does not take issue with duty counsel’s characterization of events. However, relying on R. v. Groot (1998), 41 O.R. (3d) 280 (C.A.), aff’d R. v. Groot, [1999] 3 S.C.R. 664 and R v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, she argues that a conviction can rest on a different theory of liability from that advanced by the Crown and that the appellant suffered no unfair prejudice because the appellant’s own evidence raised the route to liability relied upon by the trial judge. Further, she submits that additional submissions would not have made a difference, given the appellant’s evidence.

[43] We reject Crown counsel’s arguments.

[44] In R. v. Grandine, 2017 ONCA 718, 355 C.C.C. (3d) 120, this court held that in introducing a new, alternative, theory of liability in response to a jury’s question, without affording the accused an opportunity to make a further address to the jury, orally or in writing, the trial judge compromised the fairness of the trial. The trial judge similarly erred in this case by adopting a theory of liability disavowed by the Crown without providing notice and an opportunity to respond to the appellant.

[45] This case is different from Groot and Pickton.

[46] In Groot, the court concluded that the accused did not suffer unfair prejudice as a result of a conviction for common assault based on a single impact when the Crown had stressed a theory of multiple blows. While the Crown relied on the multiple blow theory this court noted, at para. 21, that it could not “be said that the Crown expressly rejected any other theory of liability”. The fundamental issue was whether the force used was intentional or accidental; the defence position was that the force used was accidental.

[47] In Pickton, the Crown’s theory was that the accused was the sole perpetrator. The Supreme Court held that the accused was not unfairly taken by surprise and no miscarriage of justice was occasioned when, in response to question from the jury, the trial judge amended his instructions to include an instruction on party liability. The defence knew that the co-principal theory of liability would be left with the jury. The defence theory itself had put the participation of others at issue and the accused’s statements to the police, although argued by the defence as raising a reasonable doubt that he was the killer, could also lead to the conclusion that he acted in concert with others.

[48] In this case, the defence was taken by surprise. The Crown disavowed the appellant’s theory of fact in its written submissions and, in doing so, implied that theory was exculpatory. The appellant provided further argument in support of that factual theory, unaware that the trial judge would ultimately consider imposing liability on a legal basis implicitly disavowed by the Crown. The defence was thereby deprived of an opportunity to respond to the legal issues implicated by its factual theory, namely whether party liability was available in the circumstances.

[49] In R. v MacDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494, LaForme J.A., writing for the court, explained that the term “prejudice” in the curative provision in s. 686(1)(b)(iv) of the Code includes prejudice in the broader sense of prejudice to the appearance of the due administration of justice.

[50] In MacDonald, counsel were not permitted to make oral submissions at the conclusion of a dangerous offender hearing. The court held that, subject to certain exceptions, s. 650 gives an accused the right to be present in court during the whole of his trial, including closing arguments. LaForme J.A. for the court wrote, at para. 46, that “[i]f a trial judge requires written argument as a first step in the argument process, the trial judge must allow counsel, after a written argument has been exchanged, to make oral arguments in the presence of the accused to supplement, correct, or otherwise amplify the written argument.”

[51] In MacDonald, the court inferred that counsel were satisfied with the content of the written argument and accepted that, arguably, oral submissions would have had no meaningful impact on the written submissions made by counsel. However, after explaining the term “prejudice” in s. 686(1)(b)(iv) includes prejudice in the broad sense discussed above, the court concluded, at para. 53, that, “unless there are exceptional circumstances, s. 686(1)(b)(iv) will not save a breach of s. 650(1) caused by the absence of the accused during closing arguments at the conclusion of dangerous offender proceedings.” The court found that the offender’s exclusion undermined the appearance and the reality of the due administration of justice and was not saved by the curative provision.

[52] In Grandine, the court concluded that the procedural error in permitting the jury to consider an alternative theory of liability that arose after submissions were made was sufficiently grave to result in the denial of a fair trial, causing a miscarriage of justice. The same holds true in this case.

[53] Here, where closing submissions were made in writing, the trial judge’s adoption of a theory of liability disavowed by the Crown without providing notice and an opportunity to respond to the appellant undermined the appearance of the due administration of justice. This is so whether or not the additional submissions would have made a difference. We are not of the opinion that no substantial wrong or miscarriage of justice has occurred or that the appellant suffered no prejudice as a result of these errors. The trial judge’s failure to provide notice and an opportunity to respond to the appellant cannot be saved by the curative proviso.

VII. Disposition

[54] For these reasons, the appeal is allowed a new trial is ordered.

Released: “AH” JAN 27 2021 “Alexandra Hoy J.A.” “Gary Trotter J.A.” “David M. Paciocco J.A.”