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 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20240606 Docket: COA-23-CR-0435 Brown, Coroza and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

Daniel McAllister Appellant

Counsel: Michael Lacy and Marcela Ahumada, for the appellant Linda Shin, for the respondent

Heard: May 17, 2024

On appeal from the conviction entered on February 6, 2023 and the sentence imposed on July 5, 2023, by Justice Joseph M. Fragomeni of the Superior Court of Justice.

Reasons for Decision

[1] Following the appellant’s argument, we determined it was unnecessary to call upon the Crown to respond and we dismissed the appeal with reasons to follow. These are those reasons.

[2] The appellant, a police officer, was convicted of one count of breach of trust and acquitted of one count of sexual assault involving the same complainant. He was sentenced to an 18-month conditional sentence order. He appeals both conviction and sentence.

[3] At the time of the offence, the appellant was the Domestic Violence Coordinator with the Peel Regional Police. As Domestic Violence Coordinator, the appellant was tasked with reviewing occurrences relating to domestic incidents to ensure police policy was followed and to assess the effectiveness of police response. He met the complainant following her report to police of a significant assault her then-partner committed against her on April 23, 2008. The trial judge found that the relationship between the two became personal and flirtatious almost immediately.

[4] The appellant and complainant became romantically involved soon after their first meeting. On the findings of the trial judge, the appellant communicated with the complainant almost daily in the period of May to June 2008, including 20 to 30 hours of telephone conversations during which there was flirting. The appellant and complainant engaged in sexual activity at her home only four weeks or so after their first meeting. A second sexual interaction took place at her home a year and a half later when he was on duty and after he lied to his supervisor about why he needed a police vehicle. The appellant used the car to drive to the complainant’s home in Brampton. The trial judge found that the relationship between the two developed while the criminal case was ongoing.

[5] The trial judge was not satisfied beyond a reasonable doubt that the complainant’s consent to the sexual activity was vitiated by the nature of the relationship between the two, and he found the appellant not guilty of sexual assault. However, the trial judge concluded that the appellant’s actions did constitute a marked departure from the standard of an individual tasked with his role, and that he was exercising his role to serve “his own personal agenda” rather than the public good. He therefore convicted the appellant of a breach of trust.

Conviction Appeal

[6] The appellant raises three grounds of appeal on conviction.

[7] First, the appellant submits that the trial judge provided insufficient reasons that prevent appellate review of his reasoning process. We disagree. The trial judge’s reasons clearly set out his findings of fact and an explanation for those findings. The trial judge grappled with the critical issues raised by the parties during the trial and his reasons allow for meaningful appellate review: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 11; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 68-70.

[8] Second, the appellant contends that the verdict is unreasonable. There are two avenues through which an appellate court can find a verdict is unreasonable: (1) if the verdict is not one that a properly instructed jury acting judicially could reasonably have rendered; and (2) in a judge alone trial, if the verdict is reached “illogically or irrationally” even if the evidence may be reasonably capable of supporting the verdict: R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, at paras. 28-29; and R. v. Bacchus, 2024 ONCA 43, at para. 12.

[9] The appellant’s overarching submission on this ground of appeal is that the trial judge’s findings of fact do not ultimately support his conclusion that the appellant intended to use his office to pursue a sexual relationship with the complainant for a purpose other than the public good. The appellant acknowledges that a line was crossed in terms of the behaviour expected from someone in his role, but submits that the gravity of his conduct does not rise to the level of criminality.

[10] This argument was made before the trial judge and was rejected. We see no basis to interfere with the trial judge’s rejection of this argument.

[11] The trial judge carefully considered the five elements of the offence of breach of trust laid out in R. v. Boulanger, 2006 SCC 32, [2006] 2 S.C.R. 49. He found that in this case all of them were present. Those elements are:

1. The accused is an official;
2. The accused was acting in connection with the duties of their office;
3. The accused breached the standard of responsibility and conduct demanded of them by the nature of the office;
4. The conduct of the accused represented a serious and marked departure from the standard expected of an individual in the accused’s position of public trust;
5. The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.

[12] The first element was admitted by the appellant. The trial judge had no trouble finding that the second element was met as the appellant was always acting in connection with his duties as the Domestic Violence Coordinator during his interactions with the complainant. He was also satisfied that the third and fourth elements were met, concluding that the appellant “exploited a young, vulnerable woman” and that he did so while her domestic violence case was ongoing. The trial judge also found it significant that the appellant acknowledged in cross-examination that his actions were wrong and that he should have removed himself from the complainant’s file.

[13] The trial judge also found that the fifth element, the mens rea of the offence, had been established by the Crown beyond a reasonable doubt. He found that the appellant acted with “an intention to use his public office for a purpose, other than the public good”. The non-public good “purpose” the trial judge identified was “to develop and pursue a sexual relationship with the victim of domestic violence.”

[14] There was evidence that, if accepted, would allow a trier of fact to find the appellant intended to use his public office for that improper purpose. The trial judge noted the following:

• The complainant was a vulnerable 21-year-old woman at the time and the mother of an 11-month-old baby.
• The appellant admitted he liked the fact that a pretty girl liked him.
• He found the complainant attractive.
• He flirted with her.
• He became her friend and supported her.
• They had 20 to 30 hours of conversation together, mostly about personal matters.
• The appellant was involved in the complainant’s case to such a degree that she believed he was the officer in charge of the case.
• He pursued this relationship while the case was ongoing and he became essentially the only means of communication about the case to the complainant.

[15] The trial judge concluded that “pursuing a relationship with a victim of a serious domestic assault while the case is ongoing is serious and it is a marked departure from the conduct expected of a Domestic Violence Co-Ordinator” (emphasis added). He was also satisfied that the appellant “fully intended to use his position … to continue to have extensive communication with [the complainant], and pursue a sexual relationship all for a purpose other than the public good”. The appellant admitted that, at the time, he was experiencing marital difficulties and he enjoyed that a woman he found attractive seemed interested in him. The reasons, read fairly, plainly show that the trial judge was satisfied that the appellant’s conduct established the mental culpability required for public misfeasance: Boulanger, at para. 56. There is no basis for finding the verdict to be unreasonable.

[16] Finally, the appellant submits that since the trial judge rejected the Crown’s position that the appellant had directly exploited the complainant in acquitting him of sexual assault, there must also have been doubt about an exploitative relationship demonstrating a breach of trust. As such, the appellant contends that the verdicts between the two charges are inconsistent and irreconcilable.

[17] As this court has noted, inconsistent verdicts are a subspecies of unreasonable verdicts. If a trier of fact returns a conviction on one count, and an acquittal on another count, the inconsistency in the verdicts will only render the conviction unreasonable if the appellant can demonstrate that on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis: R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 6; R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.) at p. 56.

[18] In our view, there is a rational and logical basis that can reconcile the verdicts.

[19] At its core, the issues with respect to the sexual assault count were whether the allegations of sexual activity occurred, and if proven, whether the complainant’s consent to engage in that activity was vitiated because the appellant induced the complainant to engage in the activity by abusing a position of trust: see s. 273.1(2)(c). The appellant was acquitted of sexual assault because the trial judge found that the vitiation of the complainant’s consent to the sexual activity was not proven. While the trial judge accepted that the appellant held a position of trust over the complainant, he found that the mere existence of that relationship of trust was insufficient to vitiate consent as the Crown had not proven an affirmative inducement to the sexual activity through abuse of that relationship.

[20] However, the elements of the offence of breach of trust are different. The aim of s. 273.1(2)(c) is the protection of the vulnerable and the preservation of an individual’s right to freely choose to consent to sexual activity. The aim of s. 122 (the offence of breach of trust), on the other hand, is retention of public confidence in those who exercise state power. Its purpose is to ensure that public office holders use their offices, and the powers and duties afforded to them, for the public good. As such, we agree with the Crown’s submission that the legal requirements to prove vitiation of the complainant’s consent to sexual activity are qualitatively different than the mens rea requirement for breach of trust by a public official.

[21] Both the complainant and appellant testified at trial. The complainant testified that she had sexual intercourse with the appellant on eight to ten occasions. She testified that the first occasion involved an explicit inducement by the appellant whereby he would only help her access a program for survivors of domestic violence if she performed sexual services for him. She described all their subsequent sexual encounters as the result of an expectation that he had of her and of her fear that he would stop helping her if she did not have sex with him.

[22] The trial judge rejected much of the complainant’s evidence based on aspects that lacked plausibility and on material inconsistencies regarding the alleged sexual encounters. He largely accepted the appellant’s evidence that his sexual relationship with the complainant involved only two brief consensual encounters. In these circumstances, the trial judge was not satisfied beyond a reasonable doubt that the complainant’s “free will was effectively overborne by the nature of the relationship she had” with the appellant.

[23] When assessing the breach of trust count, the trial judge was required to change his focus from the complainant’s right to freely choose to the subjective intentions and conduct of the appellant, measured against the standard appropriate to his role. The verdicts are not irreconcilable as they require separate findings and analyses. The trial judge undertook the analysis of each count properly and reached a fully consistent outcome.

Sentence Appeal

[24] Turning to the sentence appeal, the appellant sought a conditional discharge or suspended sentence, or alternatively, if the trial judge found that custody was warranted, a conditional sentence. The trial judge imposed an 18-month conditional sentence.

[25] On appeal, the appellant renews his request for a suspended sentence.

[26] First, he argues that the trial judge erroneously “double counted” by inappropriately considering s. 718.2(a)(iii) [1] in addition to the breach of trust committed in this case as aggravating even though a breach of trust is inherent in the offence. We disagree. In our view, the trial judge did not err in considering the statutory aggravating factor. The trial judge characterized the relationship between the complainant and the appellant as one of trust coming within s. 718.2(a)(iii). This was not duplicative of the elements of the offence for which the appellant was being sentenced, as the offence involved a breach of the public’s trust.

[1] If an offender is in a position of trust or authority in relation to a complainant, this is a deemed aggravating factor under s. 718.2(a)(iii) of the Criminal Code.

[27] Second, the appellant contends that the trial judge in his reasons improperly characterized the nature and elements of the offence themselves as “aggravating” on the sentence because they are the same in every breach of trust case: see R. v. Avansi, 2023 ONCA 547, at para. 6. We agree that the trial judge referred to as aggravating that the appellant “exploited his position as a police officer in order to gain the victim’s trust and pursue sexual gratification”, which was also a description of the nature of the offence. However, this blunt description of the circumstances of the offence was an important and relevant consideration in deciding whether a conditional discharge, suspended sentence, or conditional sentence should be imposed, and the trial judge was right to consider it as a factor in determining the appropriate sentence. Ultimately, even if reference to the nature of the offence was an error, we are not persuaded that it had an impact on the sentence that would justify appellate intervention: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44.

[28] Finally, the appellant asserts that the trial judge failed to provide sufficient reasons as to why a suspended sentence was rejected. We reject this submission. The trial judge’s reasons, read alongside the submissions of the parties and record, are sufficient on this point. The trial judge properly considered and applied the relevant sentencing principles to the circumstances of the offence and the offender, and balanced all the factors set out by the trial Crown and defence counsel in their submissions. We see nothing in the reasons that would permit us to intervene.

Disposition

[29] For these reasons, the conviction appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is also dismissed.

“David Brown J.A.”

“S. Coroza J.A.’

“J. George J.A.”