Court of Appeal for Ontario

Date: 2025-07-11
Docket: COA-22-CR-0160
Coram: Lauwers, George and Gomery JJ.A.

Between:
His Majesty the King (Respondent)
and
Varinder Singh (Appellant)

Appearances:
Paul Calarco and Michael Bartlett, for the appellant
Avene Derwa, for the respondent

Heard: February 4, 2025

On appeal from the conviction entered on March 22, 2022 by Justice Alexander Sosna of the Superior Court of Justice, sitting with a jury.

Introduction

[1] This appeal raises one question: can a judge, as the trial judge did here, direct a verdict of guilt? The answer is no. Even when the chance of an acquittal is remote, an accused is entitled to the jury’s verdict. I would therefore allow this appeal and order a new trial with respect to the offence for which the trial judge directed a guilty verdict. The following reasons explain why I have reached that conclusion.

Background

[2] In May 2019 members of the Durham Regional Police Human Trafficking Unit posted an advertisement on LeoList.cc offering the services of a female escort, aged 18, named “Destiny”. The police were looking for those who would be willing to pay for sexual services from underage females. LeoList does not allow users to post for sexual services if they are minors, which is why the advertisement indicated that “Destiny” was 18. The phone number listed was for an undercover police officer.

[3] On May 15, 2019 the appellant, 27 years old at the time, responded to this advertisement by sending a text message to the undercover officer’s cellphone. During their exchange the officer, pretending to be “Destiny”, advised the appellant that she was “almost 18”. The appellant wrote that he was looking for “kisses and sex”. He agreed to pay “Destiny” $120 for half an hour so long as she let him ejaculate twice.

[4] Later that day, the appellant attended at the hotel where he and the officer arranged to meet. After entering the room the appellant was greeted by the undercover officer who pointed to another officer who was in the room pretending to be “Destiny”. The officer who greeted the appellant told him that “Destiny” was 17 years old. The appellant then handed over $120 in cash, at which point he was arrested and charged with:

1. By means of telecommunication, communicating with a person he believed to be under 18 years old for the purpose of facilitating an offence under s. 153(1) of the Criminal Code, and
2. Communicating with anyone for the purpose of obtaining for consideration the sexual services of a person under the age of 18 years.

The Trial

[5] At trial, the appellant admitted that he had communicated with someone who told him that they were under the age of 18 in order to purchase sexual services. He said he did not actually believe “Destiny” was under 18, testifying that when he received text messages indicating that “I’m young and kind of new at this” and “I have to tell u im almost 18” he thought this meant that “Destiny” was slightly over 18. He attributed this misunderstanding to the fact English was not his first language and that he had only learned to speak English six years earlier in 2013. The appellant thought that in Canada people meant what they said and that, because the advertisement said “Destiny” was 18, she must have been 18. It was also his understanding that people posting advertisements like these would often indicate an age lower than their actual age. He testified further that when he was in the hotel room with the two officers he did not hear the first officer say that “Destiny” was 17 years old.

[6] During the pre-charge conference the trial judge raised, and sought counsel’s input on, the issue of included offences. The Crown submitted that communicating for the purpose of obtaining sexual services from an adult was an included offence. The appellant’s trial counsel objected, taking the view that it was not an included offence. The trial judge stated that “it’s against the law to buy sex, period” in response to defence counsel’s objection.

[7] With respect to count 2, the trial judge decided to instruct the jury that communicating with an adult for the purpose of obtaining sexual services is a lesser included offence to one involving a person under the age of 18. No one suggested that there was a lesser included offence to count 1, the telecommunication count.

[8] The trial judge proposed to explain to the jury that if they found the appellant not guilty of the two counts on the indictment on the basis that they had a reasonable doubt about whether he believed Destiny to be under 18, they must find him guilty of what the trial judge determined to be the lesser included offence. The appellant’s trial counsel objected again, requesting that the instruction be changed from “must” to “may”. The trial judge declined to do so.

[9] In her closing address, Crown counsel told the jury that in the event they accepted the appellant’s evidence that he did not know “Destiny” was 17, he was still guilty of the lesser included offence of attempting to purchase sexual services from an adult.

[10] After providing the standard, non-objectionable, instructions about the elements of the charged offences, the trial judge turned to what the jury should do if they accepted the appellant’s evidence or found that it raised a reasonable doubt:

[I]f you find [the appellant] not guilty of both counts 1 and 2, if you accept [the appellant’s] trial evidence that he intended and did negotiate that he be provided with sexual services for consideration, and Exhibits 8A and B, the text messages, confirming his negotiations, then pursuant to s. 286.1 of the Criminal Code of Canada, as a matter of law, I instruct that [the appellant] be found guilty of obtaining sexual service for consideration, or communication with anyone for that purpose, regardless of the age of that person, and regardless of the mode of communication.

In other words, it is an offence in Canada for anyone to obtain sexual services for consideration or communicate with anyone for that purpose regardless of any age. Accordingly, if you find [the appellant] not guilty on counts 1 and 2, you must find him guilty under s. 286.1 of the Criminal Code. [Emphasis added.]

The Verdict

[11] When the jury returned with a verdict, the foreman responded after each count was read aloud that they had found the appellant not guilty. The jury was not asked what their verdict was on the lesser included offence they had been instructed on. The trial judge then said this:

Well, ladies and gentlemen, you’ve come to a verdict. The law does obligate me to advise that your findings dictate that there is an included offence, and he must be found guilty of the included offence. Do you understand that? Do you agree with that? [Emphasis added.]

The foreperson responded “yes”. The trial judge then asked counsel if they wanted the jury polled, which they declined.

[12] On the first page of the verdict sheet, which is attached to these reasons as an appendix, each count on the indictment is listed with a corresponding box for the jury to indicate, with a checkmark, whether they found the appellant guilty or not guilty. The verdict sheet did not provide a place for the jury to indicate whether they found the appellant guilty or not guilty of the lesser included offence of obtaining sexual services for consideration. Instead, on the second page of the verdict sheet, the trial judge wrote the following:

[The appellant] has been found not guilty on counts 1 and 2. Pursuant to s. 286.1 of the Criminal Code as a matter of law, [the appellant] is guilty of obtaining sexual service for consideration or communicating with anyone for that purpose. [Emphasis added.]

[13] While there was a spot for each juror to initial the verdict sheet further down on the second page, there was no place for the jury to indicate whether they in fact found the appellant guilty of the lesser included offence, and no corresponding box for the jury to indicate whether they agreed specifically with the trial judge’s statement at the top of page 2.

Discussion

[14] In R. v. Krieger, 2006 SCC 47, para 18, a unanimous Supreme Court held:

It is true, of course, that the fate of the accused will often be sealed by their own testimony and admissions, or by the concessions and submissions of their counsel. But absent a plea of guilty, the need for a verdict remains. And in a trial by judge and jury, the verdict must be that of the jury, not the judge – unless the judge finds the evidence insufficient and directs a verdict of acquittal on that ground. [Emphasis added.]

[15] While a trial judge may direct an acquittal when there is no evidence upon which a reasonable jury, properly instructed, could convict, “there is no corresponding duty or entitlement to direct a jury to return a verdict of guilty”: R. v. Gunning, 2005 SCC 27, para 28.

[16] The appellant put his fate in the hands of the jury, and even though the evidence against him was overwhelming (on the count for which the trial judge entered a conviction), he was entitled to their verdict. He was deprived of that.

[17] The trial judge could have instructed the jury that they “should find” or “should have no difficulty finding” the appellant guilty of the lesser included offence. Instead, he himself made the finding of guilt thereby removing the question entirely from the jury. And Krieger tells us that this is problematic because, while a lawyer, as an officer of the court, cannot encourage jury nullification by inviting jurors to not follow the law as it has been explained to them, it is “well established that under the system of justice we have inherited from England juries are not entitled as a matter of right to refuse to apply the law – but they do have the power to do so when their consciences permit no other course”: Krieger, para 27 [emphasis removed].

[18] The Crown relies on this court’s decision in R. v. MacDonald, 2008 ONCA 572, para 33. In MacDonald, the appellant, charged with murder, “clearly and repeatedly admitted his culpability on the charge of manslaughter” and wanted the jury to specifically find him guilty of either second degree murder or manslaughter. What distinguishes MacDonald from the present appeal is that Mr. MacDonald “did not want a verdict of acquittal left with the jury because that suggestion would run at cross purposes to his attempt to gain a tactical advantage by presenting himself as a ‘stand up’ person prepared to acknowledge and take responsibility for the wrong he had done”: MacDonald, at para. 33. In other words, the trial judge in MacDonald was entitled to take the verdict of acquittal away from the jury because doing so reflected the accused’s position at trial and respected his right to control his own defence. The appellant in this case made no such tactical decision.

[19] Nor does R. v. Scordino, 2025 ONCA 12, para 8, where the trial judge removed manslaughter from the jury’s consideration, assist the Crown. While there is a lengthy discussion about a trial judge’s power to not instruct on an included offence, Scordino does not stand for the proposition that judges can direct verdicts of guilt; the ratio is that “only [a] jury may determine that the essential elements [of an offence] have been proven”, a boundary that “must be strictly observed”.

[20] The question is always whether the verdict of guilt that was rendered was the jury’s verdict. Here it was not. Accordingly, it cannot stand.

[21] The Crown’s alternative argument is that in the event we find that the trial judge erred, the error had no bearing on the outcome as the result, absent the error, would have inevitably been the same. In other words, the evidence against the appellant was overwhelming.

[22] Section 686(1)(b)(iii) of the Criminal Code permits an appellate court to dismiss an appeal, even when errors were committed in the court below, if the court is “of the opinion that no substantial wrong or miscarriage of justice has occurred”. But even when the chance of acquittal is remote, an accused is still entitled to the jury’s verdict (R. v. Allen, 2007 ONCA 790, para 5), which means the proviso has no application in circumstances like these. As Fish J. wrote in Krieger, para 25:

[L]ittle needs to be said about the proviso set out in s. 686(1)(b)(iii) of the Criminal Code. That provision may perhaps be applied where there has been an imperfect trial by jury but not where, as here, there has in effect been no trial by jury at all.

[23] At the end of the day, while the appellant was entitled to a jury trial on the two counts charged in the Indictment, with respect to the count alleging that he had obtained sexual services from an adult for consideration, he did not get that trial.

[24] This case is distinguishable from Scordino, where this court applied the curative proviso to maintain the jury’s finding of guilt on first degree murder. In Scordino, the trial judge erred by directing the jury to answer “yes” to the question of whether the accused had the state of mind for second degree murder if they were to find that he was the shooter. Notwithstanding the error, this court applied the proviso because the jury had separately concluded that the killing was planned and deliberate which rendered the error “harmless in the sense that it could not have affected the verdict”: para. 52. This is very different from the circumstances in the present appeal, where the jury acquitted the appellant on the two counts charged and were not asked to make a finding on the included offence. Put another way, unlike in Scordino, the issue confronting us is not whether an error impacted the jury’s verdict; it is that the jury did not render a verdict at all. Again, the proviso has no application in a situation like this.

Conclusion

[25] For these reasons I would allow the appeal and order a new trial on the offence of obtaining sexual service for consideration or communicating with anyone for that purpose, under s. 286.1(1).

Released: July 11, 2025

“P.D.L.”

“J. George J.A.”

“I agree. P. Lauwers J.A.”

“I agree. S. Gomery J.A.”

APPENDIX