Court File and Parties

Court of Appeal for Ontario Date: 2024-10-25 Docket: C69739

Before: Trotter, Zarnett and George JJ.A.

Between: His Majesty the King, Respondent and Dailean John, Appellant

Counsel: Maija Martin and Stephanie Brown, for the appellant Jennifer Epstein, for the respondent

Heard and released orally: October 23, 2024

On appeal from: the conviction entered on December 7, 2020 and the sentence imposed on May 5, 2021 by Justice Karey Katzsch of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was charged with numerous offences including human trafficking, kidnapping, and unlawful confinement. After a trial, he was convicted of the single offence of unlawful confinement, contrary to s. 279(2) of the Criminal Code. He was sentenced to 12 months’ imprisonment and two years’ probation.

[2] The appellant challenges his conviction. He submits that the trial judge erred in finding that he was an active participant with others in the unlawful confinement, rather than being a mere bystander. We do not accept this submission. It was open to the trial judge to find that the appellant played a culpable role in the commission of this offence. It was not disputed at trial that the victim, a 15-year-old girl, was confined in the appellant’s apartment over a number of days. Others played a more direct role in the victim’s confinement, that included assaults, sexual assaults, and hog-tying the victim. There was evidence the appellant was aware that others had confined the victim in his apartment. He would have observed her tied-up in the hallway of his apartment. He visited the victim in one of the bedrooms after she had been tortured by others and then confronted her about stealing from him. There was other evidence that he controlled her movements in his apartment and that she was not free to go.

[3] The appeal against conviction is dismissed.

[4] The appellant submits that his sentence was unfit because the trial judge was not made aware of the fact that he is a Permanent Resident and that the sentence he received will likely result in a deportation order without any right of appeal. This was established through fresh evidence which we admit for consideration. However, even in light of this information, we would not intervene. Achieving a more favourable immigration situation for the appellant by reducing his sentence would result in the imposition of an unfit sentence. The offence against the 15-year-old victim was serious, lasting over the course of several days. The sentencing judge identified the numerous aggravating factors in this case that warranted a sentence that emphasized deterrence and denunciation. The sentence imposed managed to achieve these goals; a sentence of less than six months or the substitution of a conditional sentence would not.

[5] We grant leave to appeal sentence but dismiss the appeal.

"Gary Trotter J.A." "B. Zarnett J.A." "J. George J.A."

Publication Ban

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.