



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. Downey, 2016 ONCA 19

DATE: 20160111

DOCKET: C58230

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Juteah Downey

Appellant

Tyler R. Botten, for the appellant

Gillian Roberts, for the respondent

Heard and released orally: January 5, 2016

On appeal from the convictions entered on October 16,
    2013 and the sentence imposed on January 6, 2014 by Justice A. Donald MacKenzie
    of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT


[1]

After trial by judge and jury, the appellant and his co-accused, R.B., were
    convicted of procuring K.S., who had just turned 14, to become a prostitute
    contrary to s. 212(1)(d) of the
Criminal Code
, R.S.C., 1985, c. C-46.
    The appellant was also convicted of aiding K.S. in engaging in prostitution for
    the purpose of gain under s. 212(1)(h). The appellant was sentenced to a global
    prison term of 30 months less 24 days. He appeals his convictions and seeks
    leave to appeal his sentence. The co-accuseds appeal is proceeding separately.

[2]

The appellant raises one argument on his conviction appeal. He contends
    that the closing address by counsel for R.B. relied on matters not in evidence
    and prejudiced his right to a fair trial, and that the trial judge erred in
    failing to provide a sufficient corrective instruction or in refusing to declare
    a mistrial.

[3]

We do not give effect to this ground of appeal.

[4]

At trial, the central defence of both accused, neither of whom
    testified, was that the complainant was not worthy of belief and that she had
    not been procured into prostitution, but had decided to come to Ontario from
    Nova Scotia with the intention of working as a prostitute.

[5]

The appellants counsel also suggested that if someone was acting as
    K.S.s pimp, it was the person she identified in her evidence as Stela. For
    her part, in her closing argument, R.B.s counsel invited the jury to conclude
    that R.B. was merely an escort working for the appellant, not an accomplice in
    the procurement of K.S. It is this aspect of the closing address that the
    appellant now challenges.

[6]

In our view, this challenge must fail. While there was no direct
    evidence of the relationship between R.B. and the appellant, there was
    circumstantial evidence at trial from which the jury might have drawn the inference
    put forward by R.B.s counsel.

[7]

Moreover, even if R.B.s counsel crossed the line in her closing
    argument by inviting the jury to accept a relationship between the appellant
    and R.B. not directly established by the evidence, we are not persuaded that
    this occasioned any miscarriage of justice. The trial judge gave a corrective
    instruction in his jury charge that, in all the circumstances, was adequate.
    Further, there was significant direct and circumstantial evidence that the
    appellant was running an escort agency and overwhelming evidence that he was
    acting as a pimp for the complainant. And the conviction of R.B. for the
    offence of procurement clearly indicates that the jury did not accept her
    counsels characterization of the nature of her role and the extent of her
    involvement with K.S.

[8]

The conviction appeal is therefore dismissed. We do not grant leave to
    appeal sentence as the decision in
R. v. Ijam
, 2007 ONCA 597 is
    dispositive of the grounds raised by the appellant. The appellants counsel did
    not suggest otherwise at the appeal hearing.

E.A. Cronk J.A.

M. Tulloch J.A.

K. van Rensburg J.A.


