Publication Ban 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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (a) the person knowingly failed to comply with the order; (b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (c) a warning to the individual is not appropriate.

(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.

Court of Appeal for Ontario

Date: 20240222 Docket: C68772

Judges: MacPherson, Sossin and Copeland JJ.A.

Between: His Majesty the King, Respondent And: F.C., Appellant

Counsel: Jessica Zita and Jeffrey Couse, for the appellant Katherine Beaudoin, for the respondent

Heard: February 20, 2024

On appeal from the convictions entered on April 18, 2018 by Justice J. Christopher Corkery of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Following a jury trial presided over by Corkery J. of the Superior Court of Justice, the appellant was convicted of 12 sex related offences involving four women, a young man, and a young boy. The appellant appeals his convictions on two grounds.

(1) The severance ground

[2] At the trial, the appellant sought to have the indictment of 15 counts involving the six complainants severed into three sets to be tried separately, divided on the basis of the complainants and the time periods.

[3] Section 591 of the Criminal Code provides that “any number of counts for any number of offences may be joined in the same indictment”. The leading case interpreting this provision is R. v. Last, 2009 SCC 45, wherein Deschamps J., at para. 18, identified nine factors that may assist in determining whether to sever counts in an indictment in a specific case:

(1) The factual and legal nexus between the counts. (2) The complexity of the evidence. (3) Whether the accused intends to testify on one count but not another. (4) The possibility of inconsistent verdicts. (5) The desire to avoid a multiplicity of proceedings. (6) The length of the trial, having regard to the evidence to be called. (7) The potential prejudice to the accused with respect to the right to be tried within a reasonable time. (8) The use of similar fact evidence at the trial. (9) General prejudice to the accused.

[4] The trial judge ruled against the appellant on this preliminary issue. He considered all nine of the Last factors and concluded that “on the circumstances of this case I find that the applicant has not established on the balance of probabilities that a severance is necessary in the interests of justice”.

[5] The appellant submits that the trial judge erred in three respects in reaching this conclusion: (1) he failed to accord sufficient weight to the risk of prejudice; (2) he erroneously described the weak factual nexus between the counts as “neutral” when this factor weighed in favour of severance; and (3) in the circumstances of this complex case, the denial of severance occasioned an injustice to the appellant.

[6] We are not persuaded by this submission. With respect to the first and third of the appellant’s points, the appellant’s submission is simply too vague to be persuasive. The trial judge provided careful and detailed analysis of the eight factors favouring the Crown on the severance issue.

[7] With respect to the second of the appellant’s points, the trial judge did not err by finding that the lack of factual connection between the counts was a “neutral” factor. The trial judge weighed both sides of the issue. On the one hand, he considered that the counts were factually distinct, unrelated, and none of the fact witnesses in one set of charges would be needed in the other two potential sets of charges. On the other hand, he found that there were strong factual similarities in the allegations in each set of charges. These factual similarities were the basis for the Crown’s similar fact evidence application. The trial judge considered the Crown’s viable similar fact application as a factor weighing against severance. In the event, the similar fact application was granted. The trial judge found that the factual connection, or lack thereof, between the counts was neutral when weighed against the similarities between the allegations. In our view, it was reasonable for the trial judge to consider this factor “neutral” in the circumstances.

(2) The jury charge issue

[8] The appellant contends that the trial judge improperly charged the jury on the human trafficking charge in the indictment.

[9] Section 279.01 of the Criminal Code provides:

Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence….

[10] In charging the jury on the offence of human trafficking, the trial judge instructed:

For you to find [F.C.] guilty of exploitation, Crown Counsel must prove the following essential elements beyond a reasonable doubt: one, that [F.C.] exercised control, direction or influence over the movement of C.G.; two, that [F.C.] exercised control, direction, or influence over the movements of C.G. for the purpose of exploiting C.G.

Each essential element may be made into a question for you to consider carefully and answer. First, did [F.C.] exercise control, direction or influence over the movements of C.G.?

[11] The trial judge then moved to further defining the conduct element of the offence – i.e. control, direction and influence:

The meaning of some of these things, obviously, overlaps. To exercise control, is to exercise power, or influence over C.G. to restrict her activity. To exercise direction, means to instruct with authority to cause C.G. to take a particular course to govern. To exercise influence, means to have influence on the control, direction, or influence over, must relate to the movements of C.G.

[12] The appellant posits that this instruction is defective because it does not respect the clear differences between the words ‘control’, ‘direction’ and ‘influence’ articulated by this court, admittedly after the trial in this case, in R. v. Gallone, 2019 ONCA 663.

[13] We do not accept this submission. In our view, the trial judge’s instruction was sufficient. It maintained the distinction between the different methods of satisfying the conduct element of the offence. We see no error in the instruction that at a factual level, they could well overlap, depending on the appellant’s specific activity in each instance involving C.G.

[14] Further, the human trafficking count in relation to C.G. did not turn on the finer points of the legal definitions of exercising control, direction or influence. The appellant denied knowing that C.G. was involved in sex work and denied the conduct alleged to constitute exercising control, direction or influence. The count turned on the jury’s credibility assessment. The sufficiency of the instruction in the circumstances of this trial is supported by the absence of any objection by trial counsel.

[15] The appellant abandoned his sentence appeal.

Disposition

[16] The appeal is dismissed.

“J.C. MacPherson J.A.”

“L. Sossin J.A.”

“J. Copeland J.A.”