



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. Lavigne, 2015 ONCA 915

DATE: 20151223

DOCKET: C59376

Juriansz, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jacqueline Lavigne

Appellant

Kashmeel McKöena, for the appellant

Greg Skerkowski, for the respondent

Heard and released orally: December 16, 2015

On appeal from the conviction entered on April 14, 2014
    and the sentence imposed on September 26, 2014 by Justice Patrick J. Flynn of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals her conviction for sexual exploitation and the
    sentence imposed.

[2]

The conviction was based on the trial judges finding that the
    appellant, a high school teacher, had sexual intercourse with the complainant,
    a 17-year-old student in her class, at her home on the night of October 29,
    2011.

[3]

The trial judge found that the appellant and her student carried on
    prolonged communications of a sexual nature with each other via Blackberry Messenger
    prior to October 29. Classmates of the complainant testified to having seen
    sexually explicit messages sent to him by the appellant. Two of his friends
    testified that they dropped him off at her house on October 29. The complainant
    testified that the appellant had sexual intercourse with him and he then used
    the appellants landline to call one of his friends to come and pick him up from
    her house. The Crown led evidence that a friends cellphone received a call
    from the appellants landline at the time the complainant testified he made the
    call. A representative of Blackberry testified that most of the messages
    between the appellant and complainant were no longer available, but that the
    available records showed that hundreds of messages had been exchanged between
    the appellants and the complainants devices.

[4]

The trial judge concluded that the
viva voce
testimony of the
    complainants classmates, the technical data from Blackberry and the call logs
    from the phone of the complainants friend, all confirmed the complainants
    testimony. He rejected the defence theory that the complainant made the whole
    story up in order to get a passing grade and doubted that he would have been
    able to recruit his classmates to support his false testimony and create false
    technical evidence by spoofing the appellants telephone number. The trial
    judge accepted the complainants testimony without hesitation, without doubt
    and found the testimony of his classmates credible, believable and trustworthy.
     The appellant did not testify. The trial judge concluded that the charge was
    proven beyond a reasonable doubt.

[5]

On appeal, the appellant repeats several of the arguments made and
    rejected at trial, and advances others not made at trial and not supported by
    the record. We find it unnecessary to deal with the specific arguments. In our
    view, the appellant is essentially seeking to retry the case before this court on
    a standard that would require the charge to be proven to an absolute certainty.

[6]

The trial judge heard and saw the witnesses and it was his function to
    weigh the evidence, make the findings of fact and credibility, and decide the
    case. The appellate function is to determine whether the trial judge made any
    reversible error. We have not been persuaded that he did. The trial judges finding
    that the evidence, as a whole, proved the charge beyond a reasonable doubt is amply
    supported by the record.

[7]

The appeal of the conviction is dismissed.

[8]

The appellant also appeals her sentence of 13 months imprisonment.

[9]

Counsel submits in the factum that the judge erred by discounting and
    completely inversing the weight that should have been attached to the 78 very
    impressive character reference letters filed on the sentencing. The judge
    explained that he would not use the letters to mitigate sentence because the
    letters cement the very qualities that allow this kind of crime to happen.
    They show the position of trust and authority in spades. We see no error.

[10]

We
    are not persuaded that the judge made any error in principle in sentencing, and
    in our view, the sentence is not manifestly unfit.

[11]

As
    the sentencing judge pointed out, teachers in our society are in a special
    position of trust and authority. The appellants conduct was not a single lapse
    in judgment. Prior to October 29, she had carried on a prolonged,
    inappropriate, sexually charged relationship with a minor student in her
    charge. She engaged in sexual intercourse with him while he was intoxicated.

[12]

We
    are not persuaded that there is any basis upon which we should interfere with
    the sentencing judges discretion in his fashioning of the appropriate
    sentence.

[13]

The
    sentence appeal is dismissed.

R.G. Juriansz J.A.

David Watt J.A.

Lois Roberts J.A.


