



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. R.S.L., 2021 ONCA 576

DATE: 20210823

DOCKET: C66965

Tulloch, Huscroft and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.S.L.

Appellant

R.S.L., acting in person

Paul Alexander, appearing as duty
    counsel

Phillipe Cowle, for the respondent

Heard: March 11, 2021 by video
    conference

On appeal from the conviction entered on
    April 30, 2019 and the sentence imposed on June 26, 2019 by Justice Robbie D.
    Gordon of the Superior Court of Justice, sitting without a jury.

REASONS
    FOR DECISION

[1]

The appellant, R.S.L., appeals his conviction of
    the following offences: sexual assault (x2), receiving material benefits from
    sexual services (x2), and advertising sexual services (x2). As a result of
    these convictions, the appellant was sentenced to a global sentence of seven
    and a half years, less three years pre-trial custody. He also seeks leave to
    appeal his sentence, and if leave is granted, he appeals his sentence.

[2]

The appellant appeals his convictions on the
    basis that the trial judge committed a number of errors with respect to his
    factual findings. The appellant is essentially asking this court to review the
    credibility findings of the trial judge. For the following reasons, we are not
    satisfied that the trial judge committed any errors in his factual findings to warrant
    appellate intervention.

The Background Facts

[3]

The underlying facts can be summarized as
    follows.

[4]

The allegations against the appellant involved
    three complainants: J.T., J.F., and J.L. The appellant was convicted of all
    charges related to J.T. and J.F., and acquitted on all charges in respect of J.L.
    All three complainants were in their early twenties at the time when they met
    and became involved with the appellant. The appellant was in his late forties.
    All the complainants were addicted to various types of illicit drugs, including
    cocaine and fentanyl. Because the appellant was acquitted of the charges
    pertaining to J.L., we focus our analysis only on the evidence relating to J.T.
    and J.F.

[5]

The two complainants, who were the subject of
    the convictions, testified that they were both sexually assaulted by the
    appellant, and that at various times the appellant used his own computer to
    create an escort service advertisement on the online website known as Backpage.com.
    Both complainants, J.T. and J.F. testified that the appellant took an active
    role in the advertisement for sexual services, the provision of a room rented
    by the appellant to meet clients, the amount of fees which each of them charged
    their various clients, and the monies that should be paid to the appellant in
    return, by each complainant. The appellant also provided each of J.T. and J.F.
    with a cellular phone for communications between their clients, and at times,
    he supplied both complainants with drugs that were to be paid for through
    escorting.

[6]

The appellant did not testify.

[7]

The trial judge found the evidence of both J.T.
    and J.F. credible and reliable, and convicted the appellant of all charges
    pertaining to these two complainants. He had a reasonable doubt with respect to
    the evidence of J.L. and acquitted the appellant with respect to the charges
    pertaining to her.

The Grounds of
    Appeal

[8]

In oral argument, the appellant, through duty
    counsel, advanced three principal grounds of appeal, essentially attacking the
    trial judges credibility findings. He says that the trial judge erred:

i.)

By drawing the impermissible inference that both
    complainants evidence was more credible because they repeated the same version
    of events on several previous occasions;

ii.)

By not considering the risk of collusion by the
    various complainants, especially because J.T. and J.F. were friends; and

iii.)

By improperly relying on the lack of
    embellishment in both complainants allegations and evidence to support their
    credibility.

Discussion

[9]

It must be noted at the
    outset that a trial judges findings of credibility are owed heightened
    deference and absent a palpable and overriding error will not be interfered
    with on appeal:
R. v. G.F
., 2021 SCC 20, 71 C.R. (7th) 1, at para. 81;
R. v. R.E.M.
, 2008 SCC, [2008] S.C.R. 3, at para. 32.

[10]

The appellant argues that the trial judge
    committed palpable and overriding errors in his factual findings regarding the
    credibility of the complainants.

[11]

First, the appellant argues that the trial judge
    drew the impermissible inference that both complainants evidence was more
    credible because they repeated the same version of events on several previous
    occasions.

[12]

The appellants argument is based on the following
    excerpt from the trial judges reasons, where he made certain observations.
    With respect to the evidence of J.T., he stated:

I find her evidence to be reliable for several
    reasons. To begin with, her version of events seemed to have remained quite consistent.
    She gave a lengthy statement to the police. She testified at the preliminary hearing.
    She gave evidence at trial. Yet I was directed to very few inconsistencies in
    her evidence.

[13]

In reference to the evidence of the complainant,
    J.F., the trial judge stated as follows:

She gave a detailed statement to police,
    testified in the preliminary hearing, and gave evidence at trial. If there were
    significant changes in her story, they were not brought to my attention. In
    short, she was believable. Theres not good reason to doubt the reliability of
    her evidence and where corroboration might be expected to be found, it was.

[14]

These observations and comments by the trial
    judge were made within the context of arguments raised by the defence attacking
    the credibility and reliability of both complainants evidence, as they were
    both heavy drug users and were addicted to both fentanyl and cocaine.

[15]

In his closing submissions, the defence counsel
    at trial made the following statement, which outlined his approach to the
    evidence:

Credibility in these cases is extremely
    important. We have to look at not only what they said in examination-in-chief,
    but what they said in cross-examination, how they presented themselves, what
    issues they had concerning drug use, drug consumption and how that affected
    their memory, if any, and the type of drug that was used.

Now, Your Honour is well aware this is  Were
    not just talking about just cocaine here. Were talking about fentanyl. All
    three young ladies are talking about fentanyl, and Im going to go about it in
    a different fashion than my friend. Im going to start with [J.L.], Your
    Honour.

[J.L.] was indicating that she, after leaving
    detox in early November, relapsed and started using fentanyl. She hadnt met
    Mr. [L.]. yet, and from what we heard, she was already escorting with her
    friend named [B.]



In her own words. And shes on fentanyl and cocaine.
    So, all of this is memories made by her while under, what I would put a
    tremendous amount of drugs that shes getting from  She gets patches from
    anybody.



And then we recall that she got into fentanyl,
    and I think it was [J.], and I stand to be corrected about [fentanyl], Your
    Honour. So, all of that affecting memory recall and otherwise.

[16]

It is clear from the above excerpts that the
    defence strategy was to attack the credibility and reliability of the
    complainants evidence by highlighting and focusing on the impact of their
    heavy drug use and addictions on their memory, and their ability to accurately
    recall what had occurred in their lives during the time period of the
    allegations.

[17]

In his reasons for judgment, before making any
    reference to the consistency of the complainants prior statements, the trial
    judge specifically referenced the defence argument, which provided the context
    for his subsequent comments on the credibility and reliability of the
    complainants evidence:

Defence counsel argued that the evidence of J.T.
    was neither credible nor reliable. He pointed out that she was, during much of
    the period in question, a heavy user of fentanyl and therefore her ability to
    recall and relate evidence would necessarily be compromised. He pointed out
    that by her own admission, she recruited J.F. to work with her as an escort for
    the accused. He questioned why she would have done so if she had been sexually
    assaulted by him.

[18]

It was perfectly appropriate for the trial judge
    to reference the previous consistent versions of the complainants evidence
    within the context of defence counsels attack on the reliability of their
    evidence due to faulty memory, which could have been induced by the consumption
    of heavy drug use. We do not agree that the trial judge used the prior
    consistent versions as corroboration, but rather to provide important context
    for assessing the reliability of the evidence of the two complainants:
R. v. L.O.
, 2015
    ONCA 394, 324 C.C.C. (3d) 562, at para. 34.

[19]

The judges reasons when read as a whole and in
    the context of the submissions of defence counsel at trial do not reveal any
    error that warrants appellate intervention. Accordingly, we would not give any
    effect to this ground of appeal.

[20]

The second argument raised by the appellant is
    that the trial judge erred in not addressing the risk of collusion in the
    respective complainants evidence, as the two complainants were close friends
    who made very similar allegations against the appellant.

[21]

We do not agree.

[22]

At trial, the Crown filed a similar fact
    application which was dismissed by the trial judge. The issue of innocent
    collusion was relevant only to the similar fact application. Once this
    application was dismissed, it was no longer an issue on the trial proper. On
    the trial proper, the defences argument was that the complainants were either
    deliberately lying, or that their evidence was unreliable because of their drug
    use and addiction. The trial judge made specific findings of fact that the complainants
    evidence was both credible and reliable.

[23]

The veracity of their evidence was not affected
    by their drug consumption. As a result, there was no merit to the argument that
    the complainants were mistaken about the material elements of the offences they
    alleged against the appellant.

[24]

Both complainants were clear in their evidence
    that they were sexually assaulted by the appellant, and that they participated
    in sex work that financially benefitted the appellant.

[25]

We would not give any effect to this ground of
    appeal.

[26]

Finally, the appellant argues that the trial
    judge erred in his credibility assessment of the complainants evidence by
    improperly relying on lack of embellishment to support the complainants
    credibility.

[27]

The appellant relies on the following excerpt
    from the trial judges reasons to substantiate this position:

I find her to be compelling for many of the
    same reasons I found the evidence of J.T. to be compelling. Like J.T., J.F. was
    quick to admit her shortcomings, no matter the light they cast her in. She
    admitted to a longstanding addiction to drugs. She admitted to voluntarily
    working as an escort. She placed blame for her actions nowhere but on herself.
    She did not overstate or dramatize her situation. She was very matter of fact
    at setting out how her life had played out.

When she spoke of what her addiction had cost
    her, of her loss of self-respect, she did not speak angrily of Mr. [L.].
    Even when she described being sexually assaulted by him, she did not express
    anger or resentment towards him. Rather she described it as a point at which
    she realized that all of her self-worth had gone.

[28]

We do not agree with the appellants
    characterization of the impugned portion of the trial judges reasons.

[29]

A trial judges reasons must be read as a whole,
    and within the context of the evidence adduced at trial. At trial, the
    appellant attacked the credibility and reliability of the complainants
    evidence. On several occasions in closing submissions, the defence highlighted
    the fact that the complainants were heavy drug users. They were both addicted
    to fentanyl and cocaine, and were admittedly, escorts. The judges observation
    is simply a recognition of the forthrightness and candour of both complainants
    evidence, a factor that goes directly to the credibility of each witness, and a
    factor that was properly within the purview of the trial judge to consider.

[30]

In the result, we are satisfied that the
    findings made by the trial judge were open to him. The specific complaints
    advanced do not rise to the level required to warrant our interference.

Disposition

[31]

The appeal from conviction is dismissed.

[32]

In his notice of appeal, the appellant also
    appealed his sentence on the basis that the sentence was excessive. The appellant
    was sentenced to a total of seven and a half years, less three years pre-trial
    custody. The sentence comprised of two consecutive three-year sentences for two
    counts of sexual assault on two complainants, and an additional 18-month
    consecutive sentence for the prostitution-related offences.

[33]

The sentence imposed was within the appropriate
    range, considering the nature of the offences, as well as the aggravating
    factors outlined by the trial judge.

[34]

The sentencing decision is entitled to
    considerable deference unless this court is satisfied that the sentence imposed
    was demonstrably unfit, or that the sentencing judge made an error in principle
    that had an impact on the sentence:
R. v. Lacasse
, 2015 SCC 64, [2015]
    3 S.C.R. 1089, at paras. 10-11, and 39-41.

[35]

We see no errors in the sentence imposed, nor
    was the sentence demonstrably unfit; as such, there is no basis for us to
    interfere.

[36]

Leave to appeal sentence is granted; sentence
    appeal is dismissed.

M.
    Tulloch J.A.

Grant
    Huscroft J.A.

J.A.
    Thorburn J.A.


