CITATION: R. v. Lucchesi, 2026 ONSC 2060

COURT FILE NO.: CR-24-1/612

DATE: April 8, 2026

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

and -

SEBASTIAN DAVID LUCCHESI

Counsel:

Monica Gharabaway, for the Crown

Janelle Belton, for the accused

Heard: April 8, 2026

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

K.L. Campbell J.:

RULING

Mistrial and Recusal Application

A. Introduction

1On January 23, 2026, at the conclusion of a judge-alone trial, the accused, Sebastian David Lucchesi, was found guilty of a host of human trafficking-related offences with respect to two young, female complainants, N.B. and S.W. See: R. v. Lucchesi, 2026 ONSC 326. The trial had taken place in November of 2025, over approximately a week.

2The Crown had alleged, by the indictment against the accused, that the accused had trafficked the young female complainant, S.W., in the sex trade industry, in the fall of 2022. The Crown also alleged that the accused advertised the sexual services of S.W. and N.B. for consideration and received much of the money they obtained for providing their sexual services to others. The Crown also alleged that the accused transmitted and distributed “child pornography” images and distributed intimate images of N.B. to her mother. The Crown also alleged that the accused assaulted N.B. and caused her bodily harm. The Crown also alleged that the accused violated the residence condition of his judicial interim release order. All of these offences were alleged to have been committed by the accused in the city of Toronto, in the Toronto Region, sometime between August 23 and November 30, 2022. The defence denied each of these allegations and the accused pled “not guilty” to all charges in the indictment. The accused was found not guilty of some of the charges against him.

3Just prior to February 20, 2026, a day that was set to schedule the sentencing hearing in this matter, defence counsel for the accused brought an application for an order declaring a mistrial, and asking me to recuse myself from any further participation in this case. In her written materials launching this application, defence counsel contended that my conduct in relation to one particular issue in the case has created a reasonable apprehension of bias on my part. Given the lateness of the application, the matter was adjourned to permit the Crown to file its own responding materials in relation to this motion. It is apparent from these materials that the Crown is opposed to this application.

4This application is, in my view, entirely meritless, and it is dismissed. Indeed, I did not call upon the Crown for oral submissions in response to the application.

B. The Amendment of Count Seven of the Indictment

5One charge against the accused is particularly important to understand this application and this Ruling. One of the charges against the accused – the charge in count 7 of the indictment – alleged that, on or about August 23, 2022, in Toronto, the accused did “knowingly distribute an intimate image” of N.B., knowing (or being reckless) that N.B. did not consent to that conduct, contrary to s. 162.1 of the Criminal Code.

6By this count in the indictment, the Crown contended that the accused sent a number of clearly “intimate images” of the young female complainant, N.B., to her mother. The great majority of the relevant images in this case, in my view, constituted “intimate images”, in that some of them clearly displayed N.B. engaged in explicit sexual activity, or show her nude or nearly nude body, or simply expose her genital organ, anal region or breasts. The very nature of these intimate images strongly suggested that N.B. had a reasonable expectation of privacy in connection with these intimate images. She possessed that reasonable expectation of privacy when the images were first created, and she maintained that reasonable expectation of privacy later, when the accused transmitted them to her mother. N.B. was not called as a witness to suggest otherwise.

7In any event, I was satisfied beyond a reasonable doubt that N.B. always possessed a reasonable expectation of privacy in respect of these intimate images of her, and that she never gave her consent, to anyone (including the accused), to send those images to anyone else (including her own mother).

8I was also satisfied beyond a reasonable doubt that the accused was the person who transmitted those intimate images of N.B. to her mother. In so doing, the accused callously told N.B.’s mother, in the accompanying text message, that N.B. was the “biggest slut he had ever seen.” This transmission took place after the personal relationship between the accused and N.B. had broken down, and the accused seemed motivated for humiliation and revenge against N.B.

9This was, unquestionably, a morally repugnant thing for the accused to do. Sending these intimate images of N.B. to her mother, together with his accompanying text message, was reprehensible. More importantly, however, it was unquestionably a violation of s. 162.1(1) of the Criminal Code, in that the accused had knowingly transmitted an intimate image of N.B. to her mother without the consent of N.B.

10Nevertheless, the accused could not be convicted of the charge against him because he was charged with having “distributed” these intimate images. The law is clear that, in order to prove a charge of having distributed intimate images, the Crown must prove that the intimate images were sent to more than one person. See: R. v. Cole (1981), 1981 1925 (ON CA), 34 O.R. (2d) 416, 64 C.C.C. (2d) 119 (C.A.); R. v. Faulkner (1997), 1997 1193 (ON CA), 120 C.C.C. (3d) 377 (Ont.C.A.) at para. 18. The accused had only sent the intimate images to one person – N.B.’s mother.

11After hearing the submissions of counsel on the question of the potential liability of the accused, I reserved judgment on the case. As I reflected on the submissions of counsel, it struck me that, one potential solution to this issue was to slightly amend the indictment so that it formally charged the crime committed by the accused – namely, transmitting the intimate images without consent (instead of distributing these intimate images without consent). The British Columbia Court of Appeal had done, essentially, the same thing on the appeal in R. v. G.F., 2018 BCCA 81, at paras. 45-47, 55-70, 71-83. But, I wanted to hear the submissions of counsel as to whether or not that was a legally appropriate resolution of that issue in this case. Accordingly, I expressly invited the submissions of counsel on the issue. Defence counsel explained why she was opposed to this proposal, while the Crown indicated that she was in favour of that solution. Significantly, however, in her submissions that opposed the amendment, defence counsel was unable to articulate how the accused was in any way prejudiced or misled by the amendment.

12After hearing the submissions of both parties on this issue, and thinking more about the issue, I decided that there was no reason not to simply amend the indictment as I considered appropriate. Indeed, in my view, that was what the interests of justice required in all of the circumstances of this case.

13I was fully satisfied that this amendment would not be in any way prejudicial or unfair to the accused. The defence knew, from the very outset of the case, that the Crown contended that the accused had sent these intimate images to N.B.’s mother, and that this misconduct on his part was a clear contravention of s. 162.1(1) of the Criminal Code.

14While the Criminal Code listed six different means of committing the offence, the Crown had alleged in the indictment one of the ways that was inapplicable to the circumstances of the case. The proposed amendment cured that problem – and cured it in a way that was neither prejudicial nor unfair to the accused. The accused was not in any way misled or prejudiced by this proposed amendment. While the defence has been given opportunities to show how the accused has been prejudiced or misled by the amendment, the defence has utterly failed to establish any such potential prejudice or unfairness.

15What the accused was deprived of, by the proposed amendment, was an acquittal based upon a purely technical interpretation of the indictment. The accused was still, in reality, guilty of transmitting the intimate images of N.B. to her mother, without the consent of N.B. But, the accused was deprived of that technical acquittal only because he had not committed the more egregious offence charged, of distributing those intimate images of N.B. to more than one person.

16In the result, I concluded that the amendment can and should be made, pursuant to s. 601 of the Criminal Code. The amendment was made to count 7 of the indictment, and the accused was convicted of the offence he committed – transmitting intimate images of N.B. without her consent. I was satisfied beyond a reasonable doubt that the accused had committed that offence. See: R. v. G.F., 2018 BCCA 81, at paras. 45-47, 55-70, 71-83. See also: R. v. Irwin (1998), 1998 2957 (ON CA), 38 O.R. (3d) 689, 123 C.C.C. (3d) 316 (C.A.) at paras. 3-4, 13-26, 31, 42; R. v. Montgomery, 2009 BCCA 41, 241 C.C.C. (3d) 469, at paras. 66-70; R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at paras. 29-33; R. v. Pelletier, 2012 ONCA 566, 291 C.C.C. (3d) 279, at paras. 123-126; R. v. R.S., 2023 ONCA 626, at paras. 24, 32-39; R. v. K.R., 2025 ONCA 330, at paras. 8-10, 17-22.

C. Does the Amendment Reveal a Reasonable Apprehension of Bias?

17Defence counsel for the accused now contends, however, that my idea of amending the indictment, to allege that the accused “transmitted” (instead of “distributed”) the intimate images of N.B. without her consent, resulted in the creation of a “reasonable apprehension of bias,” in that I had “descended into the fray by acting as an advocate for the prosecution.” Ms. Belton argued that this “tainted” the fairness of the proceedings, and that the only “appropriate remedy” was the declaration of a mistrial.

18The legal standard for establishing a reasonable apprehension of bias has long been accepted to be the standard articulated by de Grandpré J. in the Supreme Court of Canada decision in Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, where he stated:

… the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

19Applying that standard to the present case, I have no hesitation concluding that a reasonable and right-minded person, viewing the matter realistically and practically, would conclude that I was able to decide the question of the potential liability of the accused fairly and impartially. See also: Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at para. 14-20; R. v. R.D.S., 1997 324 (SCC), [1997] 3 S.C.R. 484, 118 C.C.C. (3d) 353, at paras. 31-32, 109-115; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at paras. 57-60.

20The Crown had clearly established that the accused had, for reasons known only to himself, sent N.B.’s mother a number of intimate images of her daughter, some of which revealed N.B. engaging in explicit sexual acts, while she was but 15 years of age. The accused was unmistakably guilty of the offence of transmitting those intimate images of N.B. to her mother, without the consent of N.B., in clear violation of s. 162.1 of the Criminal Code. The only practical option, as I saw it, was either: (1) acquit the accused of this terrible offence, because he was charged with “distributing” the intimate images, and had only sent them to one person, N.B.’s own mother; or (2) amend the indictment so that the accused was charged with the offence he had clearly committed, namely “transmitting” the intimate images without the consent of N.B. – provided that this amendment could be done fairly and in a way that did not in any way prejudice the accused.

21After hearing the submissions of counsel on this issue, I was entirely satisfied that the amendment could be made to the indictment without causing any unfairness or prejudice to the accused – who knew at all times that the Crown had only ever alleged that he had transmitted the intimate images of N.B. to one person (i.e. her mother). Further, according to the plain language of s. 601 of the Criminal Code, an amendment could be made to the indictment by the court without there first being an application by the Crown, at any stage of the proceedings. Further, a decision of the British Columbia Court of Appeal suggested that this was, indeed, an appropriate resolution of the issue (on appeal, even after the trial had concluded). See: R. v. G.F., 2018 BCCA 81, at paras. 45-47, 55-70, 71-83. In my view, the interests of justice required that the proposed amendment be made in all of the circumstances of this case.

22If I were to simply find the accused not guilty of the offence alleged in court 7 of the indictment, as it was originally framed, because the Crown had wrongly called this offensive misconduct by the accused “distributing” instead of “transmitting,” reasonable and right-minded persons would have concluded that I had caused a serious “injustice” in this very case.

23Indeed, I must say that I am confident in the correctness of the decision I made, and I would not change it. In my view, the accused was fairly and properly convicted on the amended count 7 of the indictment.

24I view the application now brought by defence counsel as, in effect, a suggestion that I should have, instead, tarnished and sullied the due administration of criminal justice by simply acquitting the accused, rather than amending the indictment to avoid the entirely technical acquittal of the accused on the charge alleged in count 7 of the indictment. I refused to do that.

D. Conclusion

25In the result, this misguided and meritless application by defence counsel on behalf of the accused is dismissed. We will now focus, finally, on scheduling the sentencing hearing in this case.

K.L. Campbell J.

Released: April 8, 2026