Judgment date: August 28, 2017
Criminal law --- Charter of Rights and Freedoms — Charter remedies [s. 24] — Declaration of invalidity
Criminal law --- Offences — Prostitution and related offences — Living on avails of prostitution — Miscellaneous
Criminal law --- Trial procedure — Charging jury or self-instruction — Direction on corroboration — Accomplices and witnesses of disreputable character — Requirement for warning
Criminal law --- Sentencing — Sentencing for multiple convictions
The accused operated an escort business in which he found young females, including complainants, to perform sexual services for financial gain. A Jury convicted him of living on the avails of prostitution of person under age of 18, living on avails of prostitution, making child pornography, sexual assault, invitation to sexual touching, and possession of proceeds of crime.
(1)Did the Case Management Judge Err In Dismissing the Accused's Section 24(1) Charter Application?
Prior to trial, the accused filed a motion requesting a judicial stay of proceedings for charges of living on the avails of prostitution and the charge of possession of proceeds of crime pursuant to section 24(1) of the Charter. He asserted that the prosecution of the charges breached his s. 7 Charter right, and relied on the Bedford decision, wherein the SCC declared section 212(1)(j) of the Code, living on the avails of prostitution, to be invalid.
The Court dismissed this ground of appeal, finding that Parliament enacted corrective legislation within the period of the suspension in response to the overbreadth concerns raised in Bedford. The Court also found that the facts in this case did not fall within the categories of overbreadth contemplated by Bedford, and that the accused was charged within the timeframe of the suspension and that the rule of law thus justified his continued prosecution.
(2)The Vetrovec Application
The accused also asserted that the trial judge erred in his instructions to the jury by failing to provide a Vetrovec warning regarding the evidence of a complainant, who he essentially contended was an unindicted co-accused.
The Court noted that the decision of whether to issue a Vetrovec warning is discretionary and to be reviewed on a deferential standard. It concluded that while the trial judge did not go so far as to tell the jury that it would be dangerous to convict the accused on the evidence of the complainant alone, and that they should look to evidence to corroborate her testimony, his cautions were sufficient to alert the jury to the care with which they should have approached her evidence. The accused did not show that the trial judge misdirected himself nor was his decision so clearly wrong as to amount to an injustice.
(3)The Sentence Appeal
The trial judge sentenced the accused to 15 years' imprisonment minus the credit for pre-sentence custody for a go-forward sentence of 10 years and eight months' imprisonment. The Court concluded that given that the accused committed numerous and serious crimes and that his moral culpability was high, the accused had not shown that he had an arguable case that the sentence was unfit (in fact, the trial judge found that, consecutively considered, the total sentence for all of the offences would be 22 years, and reduced it to 15 years based on the totality principle).
The Court dismissed the accused's appeal as to conviction and denied leave to appeal the sentence imposed.