



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(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    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    that could identify the victim or a witness shall not be published in any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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210,
    211, 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
    at any time before the day on which this subparagraph comes into force, if the
    conduct alleged involves a violation of the complainants sexual integrity and
    that conduct would be an offence referred to in subparagraph (i) if it occurred
    on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),
    effective December 6, 2014 (Act, s. 49).

(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)      at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)      on application made by the victim, the
    prosecutor or any such witness, make the order.

(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    shall not be published in any document or broadcast or transmitted in any way.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; and

(b) on application of the victim or the
    prosecutor, make the order.

(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.

(4)      An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(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. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bloomfield, 2016 ONCA 447

DATE: 20160607

DOCKET: C58534

Sharpe, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rebekah Bloomfield

Appellant

Boris Bytensky, for the appellant

Gillian Roberts, for the respondent

Heard: June 6, 2016

On appeal from the conviction entered on October 15, 2013
    and the sentence imposed on January 6, 2014 by Justice Donald K. MacKenzie of
    the Superior Court of Justice, sitting with a jury.

By the Court:

[1]

The appellant was convicted by a jury of procuring a 14-year-old female to
    become a prostitute contrary to what was then s. 212 (1)(d) of the
Criminal
    Code
. She was sentenced to 18 months imprisonment.

[2]

She appeals the conviction and seeks leave to appeal her sentence.

Conviction Appeal

(1)

Did the trial judge err in his instructions to the jury regarding the
    elements of s. 212 (1)(d)?

[3]

The appellant submits that the trial judge erred in his instructions as
    to the elements of this offence.

[4]

We see no error in relation to
actus reus
.

[5]

The appellants principal complaint relates to the instruction on
mens
    rea
. At trial, both Crown and defence agreed that the trial judge should
    instruct the jury that if the appellant believed the complainant was already a
    prostitute, the appellant would lack the necessary
mens rea
for this
    offence. We agree with the appellant that the trial judge erred in instructing
    the jury that the appellants belief had to be reasonable. However, we also
    agree with the Crown that in the context of this case, the error was harmless.

[6]

There was no evidence that the complainant had previously worked as a
    prostitute. The appellant did not testify that she entertained the belief that
    the complainant was already a prostitute and there was nothing else in the
    evidence adduced at trial to suggest that she might have entertained such a
    belief. In the absence of some evidence to support the belief, the defence
    could not succeed without reasonable grounds to support it. In these
    circumstances, the instruction that the appellants belief had to be reasonable
    was in error but it did not cause any substantial wrong or miscarriage of
    justice.

(2)

Unreasonable verdict

[7]

In our view there was evidence upon which a properly instructed jury
    could convict the appellant and we do not agree with the submission that the
    verdict was unreasonable.

[8]

The complainant testified that she received a Facebook message from
    someone called Beka. While the complainant could not say for certain that
    that message had been sent by the appellant, no objection was taken to the admissibility
    of this evidence and the jury was entitled to take it into account. We do not
    agree that it was hearsay.

[9]

Moreover, there was a substantial body of additional evidence from which
    it could be inferred that the appellant had played a role in persuading or
    enticing the complainant to become a prostitute. There was some evidence that the
    appellant accompanied her male co-accused on an out call with another
    prostitute on what may be described as a grooming exercise. The appellant also
    accompanied her co-accused to drive the complainant, who had not yet
    prostituted herself, from Ottawa to Mississauga. During that journey, the
    appellant gave the complainant instructions about how to commit acts of
    prostitution. The complainants first acts of prostitution took place in a room
    booked by the appellant.

[10]

In our view, taken as a whole, the evidence provided a basis upon which
    the jury could conclude that the appellant had, in concert with her co-accused,
    procured this very young complainant to become a prostitute.

(3)

Trial judges comment on the appellants failure to testify.

[11]

We do not agree with the submission that the trial judges comment that
    normally an accused who points the finger at her co-accused will take the
    stand amounted to an impermissible reference to the appellants failure to
    testify. The appellants trial counsel raised no objection and, indeed, the
    trial judges comment was made to deal with an objection made by counsel for
    the co-accused to something the appellants trial counsel had said in her
    closing. In our view, while perhaps unfortunate and unnecessary, this comment
    did not amount to an improper reference to the fact that the appellant chose
    not to testify, nor did it suggest that any reliance could be placed on the
    fact that she failed to testify.

Sentence Appeal

[12]

We do not agree that the sentence imposed was unfit or that the trial
    judge failed to take into account the fact that the appellant was a youthful
    first offender. The trial judge specifically noted that rehabilitation was an
    essential objective and that an offender should not be deprived of her liberty
    if less restrictive measures were appropriate. Given the very young age and
    vulnerability of the complainant, this was a serious offense. The trial judge
    was entitled to impose a sentence that emphasized deterrence and denunciation
    and to reject defence counsels submission that a conditional sentence was
    appropriate.

Disposition

[13]

Accordingly the appeal from conviction is dismissed. Leave to appeal
    sentence is granted but the sentence appeal is dismissed.

Released: RJS June 7, 2016

Robert J. Sharpe J.A.

David Watt J.A.

David Brown J.A.


