



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. Ochrym, 2021 ONCA 48

DATE: 20210127

DOCKET: C67930

Hoy, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terrell Ochrym

Appellant

Terrell Ochrym, acting in person

Dan Stein, appearing as duty counsel

Nicole Rivers, for the respondent

Heard: December 8, 2020 by
    video conference

On appeal from the conviction entered on
    August 21, 2019 and the sentence imposed on December 12, 2019 by Justice Alexander
    Sosna of the Superior Court of Justice, with reasons at 2019 ONSC 4864.

By the Court:


I.

OVERVIEW

[1]

The appellant, Terrell Ochrym, was convicted of
    (1) a particularized count that, contrary to subsection 286.3(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, he did exercise control, direction or
    influence over the movements of the complainant, a person who offers or
    provides sexual services for consideration, for the purpose of facilitating an
    offence under subsection 286.1 of the
Criminal Code
; and (2) knowingly
    advertising an offer to provide sexual services for consideration, contrary to
    s. 286.4 of the
Criminal Code
.

[2]

He was sentenced on December 12, 2019 to a
    period of custody of two and a half years and given credit for two years of
    pretrial custody, leaving six months to serve, and two years probation
    following the period of custody. Ancillary orders imposed included a 20-year
    SOIRA order under s. 490.013 of the
Criminal Code
. The appellant has
    served the custodial portion of his sentence.

[3]

On behalf of the appellant, duty counsel argues
    that the trial judge erred in law by convicting the appellant under s. 286.3(1)
    simply because he facilitated the complainant in providing sexual services and
    did not give proper effect to the requirement that he have exercised control,
    direction or influence over the movements of the complainant.

[4]

Duty counsel also argues that the trial judge convicted
    the appellant under s. 286.4 on a theory of liability disavowed by the Crown,
    without giving the appellant the opportunity to make submissions. This, duty
    counsel argues, resulted in prejudice and, accordingly, his conviction cannot
    stand.

[5]

For the following reasons, we accept the
    arguments advanced by duty counsel, allow the appeal, and order a new trial.
    Because we allow the appeal on this basis, it is unnecessary for us to address
    the allegation of ineffective assistance of counsel which the appellant
    advanced without the assistance of duty counsel. Moreover, since the appeal of
    the s. 286.3(1) conviction focused on whether the trial judge erred in applying
    the
actus reus
elements of the offence, we will not address the
    requisite
mens rea
of the offence in these reasons.

II.

THE RELEVANT SECTIONS

[6]

Section 286.1(1) of the
Criminal Code
makes obtaining for consideration, or communicating with anyone for the purpose
    of obtaining for consideration, the sexual services of a person an offence.

[7]

For ease of reference, ss. 286.3(1) and 286.4
    provide as follows:

286.3(1)
Procuring
 Everyone who procures a person to offer or provide sexual services for
    consideration or, for the purpose of facilitating an offence under subsection
    286.1(1), recruits, holds, conceals or harbours a person who offers or provides
    sexual services for consideration
or exercises control,
    direction or influence over the movements of that person
, is guilty of
    an indictable offence and liable to imprisonment for a term of not more than 14
    years.

286.4
Advertising sexual
    services
 Everyone who knowingly advertises an offer to provide
    sexual services for consideration is guilty of

(a) an indictable offence and
    liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on
    summary conviction. [Emphasis added.]

III.

BACKGROUND

[8]

At trial, the appellant faced six charges
    arising out of his role in the provision of sexual services by the complainant
    over four weekends. He was convicted of two of them. We review only the
    portions of the trial judges reasons with respect to, or relevant to, the two
    charges of which he was convicted, or which provide context.

[9]

The complainant and the appellant testified at
    trial, as did Mr. Oral Richards. The complainant was 17 years of age at the
    time of the alleged offences. She was romantically involved with and devoted to
    Mr. Richards, whom she knew by another name and who purported to be 25 or 26
    years old. Mr. Richards had a wife and children. He had a lengthy criminal
    record; was facing pending drug and prostitution-related charges, with an
    attendant risk of deportation; and had financial problems.

[10]

Mr. Richards was originally co-accused with the
    appellant, but the charges against him were withdrawn after he provided a
    statement to police and testified at the appellants preliminary inquiry. The
    trial judge approached Mr. Richards testimony with caution.

[11]

The complainant testified that she proposed
    engaging in sex work because she believed she needed money to help her family and
    Mr. Richards. But, according to her and Mr. Richards, neither of them had
    experience with sex work. She was under 18 and could not rent a motel room in
    her name. Mr. Richards purportedly did not have the necessary identification to
    rent a hotel room. They had little money and no car.

[12]

The complainant, Mr. Richards, and the appellant
    all testified that Mr. Richards asked the appellant for help. The appellant was
    engaged in drug trafficking and had a lengthy criminal record. At the time of
    trial, the appellant was 40 years of age.

[13]

The complainant provided sexual services for
    consideration at out-of-town motels on four weekends, from March 3, 2017
    through to April 29, 2017. The complainant, Mr. Richards, and the appellant all
    testified that the appellant picked the complainant up at her home and drove
    her. The first two weekends, Mr. Richards also accompanied her in the car.

[14]

The trial judge approached the complainants
    evidence with caution, but accepted her evidence about what the appellant did,
    in addition to driving her:

[The complainant] testified that the routine
    was the same at all motels. Upon arriving, she stayed in the car until the room
    was booked. Mr. Ochrym then brought her to the room using back entrances thus
    avoiding the front desk. Once in the room, Mr. Ochrym would leave. Using a
    cellphone, [the complainant] would take provocative photos of herself and post
    them on the internet. Once posted, she received calls from customers who
    attended the motel room and paid for her sexual services. During her stays,
    [the complainant] texted Mr. Ochrym from the room for food or necessities that
    he provided on request.

[15]

At para. 20 of his reasons, the trial judge
    described the issue before him in relation to the charge of exercising control,
    direction or influence as follows:

has the Crown proven beyond a reasonable
    doubt that [the appellant] exercised control, direction or influence over [the
    complainants] movements to facilitate her to offer to provide sexual services
    for consideration?

[16]

The trial judge concluded, at para. 84, that the
    appellant did coordinate and provide [the complainant] with the means to
    provide sexual services for consideration.

[17]

The exercising control, direction or influence
    charge against the appellant was laid pursuant to s. 286.3(2), applicable where
    the complainant is under 18 years of age. The trial judge found that the
    complainant associated with persons who appeared to be well beyond their teen
    years and represented herself to clients as being 18 years of age. He was not
    satisfied beyond a reasonable doubt that the appellant knew or was willfully
    blind that the complainant was not yet 18 years of age and, as such, did not
    take all reasonable steps to ascertain her age.

[18]

Accordingly, the trial judge acquitted the
    appellant of the offences of procuring the complainant contrary to s. 286.3(2)
    and convicted him of the included offence of s. 286.3(1), which makes no
    reference to age. The trial judges reasons for sentence indicate that he found
    that the appellant exercised direction and influence, but not control: This Court
    is left with no reasonable doubt that the complainant provided sexual services
    while under [the appellants] influence and direction.

[19]

However, the trial judge found the appellant not
    guilty of the separate charge of recruiting, holding, concealing or harbouring
    the complainant, contrary to s. 286.3(1). He found there was no evidence that
    the appellant recruited the complainant:

To the contrary, it was [the complainant] who
    with the assistance of Mr. Richards that sought out [the appellant] to assist
    them in the prostitution scheme. Nor is there any evidence that thereafter [the
    appellant] pressured, controlled or
encouraged
[the
    complainant] to sell her sexual services for consideration even after Mr.
    Richards allegedly withdrew from the scheme. [Emphasis added]

[20]

Further, the trial judge found that the Crowns
    submission that the appellant had held, concealed or harboured the complainant
    was contrary to the complainants evidence that the appellant never restricted
    her movements and at all times she was free to leave the motels at any time she
    wished. Indeed, the trial judge noted, on the weekend of April 7, 2017, when
    the complainants mother found the postings, advertising the complainants
    sexual services on the website backpage.ca (Backpage), the complainant cut
    short her weekend and hired a taxi that brought her home.

[21]

The complainant testified that she gave Mr.
    Richards part of the monies that she earned. No evidence was introduced that
    the appellant received any money from the complainants provision of sexual
    services and the trial judge found the appellant not guilty of the charges under
    s. 286.2, i.e. receiving a financial or other material benefit, knowing that it
    was obtained by or derived directly or indirectly from the commission of an
    offence under ss. 286.1(1) or 286.1(2).

[22]

The appellant admitted that he let Mr. Richards
    use his cell phone and Backpage account to advertise sexual services to be
    provided by the complainant for consideration. The trial judge also accepted
    that the complainant, directly and through Mr. Richards, sent photos of the
    complainant in lingerie, in sexual poses, to the appellants phone.

[23]

Based on this evidence, the trial judge found
    the appellant guilty of knowingly advertising an offer to provide sexual
    service for consideration by posting an advertisement on Backpage, contrary to
    s. 286.4.

IV.

THE PARTIES POSITIONS IN RELATION TO THE CONVICTION
    UNDER S. 286.3(1)

[24]

In
R. v. Gallone
, 2019 ONCA 663, 147
    O.R. (3d) 225, the court concluded the terms control, direction
or
influence in the
actus reus
of the human
    trafficking offence in s. 279.01(1) and the procuring offence in s. 286.3(1) of
    the Code are disjunctive and have different meanings.

[25]

Duty counsel and crown counsel both point to the
    following passage at para. 47 of
Gallone
:

Consistent with [
R. c. Perrault
,
    [1997] R.J.Q. 4 (C.A. Que.), 113 C.C.C. (3d) 573] I would define exercises
    influence over the movements of a person for the purposes of s. 279.01(1) as
    something less coercive than exercises direction. Exercising influence over a
    persons movements means doing anything to affect the persons movements.
    Influence can be exerted while still allowing scope for the persons free will
    to operate. This would include anything done to induce, alter, sway, or affect
    the will of the complainant. Thus, if exercising control is like giving an
    order that the person has little choice but to obey, and exercising direction
    is like imposing a rule that the person should follow, then exercising
    influence is like proposing an idea and persuading the person to adopt it. [Citation
    omitted.]

[26]

Duty counsel argues that the trial judges
    factual findings do not support his conclusion that the appellant exercised
    control, direction or influence over the complainant. In particular, he points
    to the trial judges findings that the complainant sought out the appellant to
    assist in the prostitution scheme, that there was no evidence that the
    appellant pressured, controlled
or encouraged
the
    complainant to sell her sexual services, and that the complainant was free to
    leave the motels at any time she wished. Duty counsel argues that the trial
    judges factual finding that the appellant did coordinate and provide [the
    complainant] with the means to provide sexual services for consideration does
    not amount to exercising control, direction or influence over her movements
    within the meaning of those terms in s. 286.3(1) of the
Code
.
    Moreover, he argues, the evidence cannot support a finding that the appellant
    exercised control, direction or influence over the appellants movements. All
    the appellant did was to facilitate the complainants (or the complainant and
    Mr. Richards) scheme for the complainant to sell sexual services.

[27]

Crown counsel focuses on the second sentence in
    para. 47 of
Gallone
: Exercising influence over a persons movements
    means doing anything to affect the persons movements. Crown counsel points to
    the complainants evidence, which the trial judge accepted, that the appellant
    drove her to the motels, booked the motels, brought her to the rooms using back
    entrances, and provided her with food and other necessities on request when she
    was at the motels. Crown counsel argues that coordinating and providing the
    complainant with the means to provide sexual services for consideration
    affected where the complainant went and how she got there and, accordingly, the
    trial judge correctly found that the appellant exercised influence over the
    movements of the complainant.

[28]

Further, Crown counsel submits that this broad
    interpretation of exercise influence is consistent with the purpose of s.
    286.3, as described by the court in
R. v. Joseph
, 2020 ONCA 733, at
    para. 90: Parliament enacted these provisions in order to eradicate
    prostitution to the extent possible while largely immunizing the sellers from
    prosecution.

V.

ANALYSIS IN RELATION TO THE CONVICTION UNDER S.
    286.3(1)

[29]

We agree with duty counsel that the trial
    judges factual finding that the appellant did coordinate and provide [the
    complainant] with the means to provide sexual services for consideration does
    not, of itself, support the conclusion that the appellant exercised control,
    direction or influence over her movements within the meaning of those terms in
    s. 286.3(1) of the
Code
. In convicting the appellant under s. 286.3(1)
    of exercising discretion and influence, the trial judge erred in determining
    the
actus reus
of the offence by focusing solely on what the appellant
    did, without regard to the nature of the relationship between the appellant and
    the complainant, and the impact of the appellants conduct on the complainants
    state of mind. Sometimes, the nature of the relationship and the impact of the
    accuseds conduct on the complainants state of mind will be evident from what
    an accused said or did and what the complainant said or did in response. But
    that is not the case here.

[30]

The statement at para. 47 of
Gallone
that [e]xercising influence over a persons movements means doing anything to
    affect the persons movements cannot be read in isolation. The balance of
    para. 47 and para. 50, reproduced below, indicate that in considering whether
    what an accused did amounted to exercising control, direction or influence over
    the movements of a complainant, regard must be had to the nature of the
    relationship between the accused and complainant:

all these residual terms  exercises
    control, direction or influence  evoke a scenario in which a person, by
    virtue of her or his relationship with the complainant, has some power 
    whether physical, psychological, moral or otherwise  over the complainant and
    his or her movements. As stated in
A Handbook for Criminal Justice
    Practitioners on Trafficking in Persons
, (Ottawa: Department of Justice,
    2015), which was developed by the Federal/Provincial/Territorial Working Group
    on Trafficking in Persons, these residual terms characterize the nature of
    conduct in terms of the relationship between the accused and the victim in
    relation to the victims mobility: at p. 20. In other words, by virtue of the
    relationship between the accused and the complainant, the accused was in a position
    or had the ability to control, direct or influence the movements of the
    complainant. However, as already stated, the terms control, direct and
    influence involve different degrees of coercion[.]

[31]

The meaning
Gallone
ascribes to
    exercise of control, direction or influence covers a wide range of
    intentional conduct and is consistent with the purpose of s. 286.3, as
    articulated in
Joseph
.

[32]

In
Joseph
, the court, among other
    things, rejected the trial judge s definition of harbour in s. 286.3 as to secretly
    shelter and protect. The court concluded that harbour in s. 286.3 includes
    the simple provision of shelter, whether secretly or not. The court observed,
    at para. 90, that Parliament enacted s. 286.3 and the other commodification of
    sexual services provisions in order to eradicate prostitution to the extent
    possible while largely immunizing the sellers from prosecution. However, the
    interpretation of the section was supported by the statute. The courts
    interpretation of harbour was consistent with the meaning of word used in the
    French version of the section  héberge  and, as the court noted at para.
    85, supported by the presumption against redundancy. To avoid tautology, the
    court reasoned, harbour must mean something other than conceals.

[33]

Had Parliament intended s. 286.3(1) to
    criminalize any conduct affecting a complainants movements that facilitates
    the provision of sexual service for consideration, it would have done so more
    clearly. For example, s. 286.4 provides that it is an offence to knowingly
    advertise an offer to provide sexual services for consideration. Parliament did
    not provide that driving a sex worker to a motel or booking the motel where the
    worker provides sexual services for consideration is an offence. Rather, as noted
    above, Parliament used terms which require consideration of whether because of
    the relationship between the accused and the complainant, the accused was in a
    position or had the ability to, and did, exercise control, direct or influence
    the movements of a person who provides sexual services for consideration. Some
    regard must be had to the nature of the relationship between the accused and
    the complainant. Yet the trial judge failed to do so.

[34]

In convicting the appellant under s. 286.3(1) of
    exercising direction and influence, the trial judge thereby erred in examining
    the
actus reus
of the offence by focusing solely on what the appellant
    did, without regard to the nature of the relationship between the appellant and
    the complainant.

[35]

It is possible that had the trial judge turned
    his mind to the nature of the relationship he may have found the
actus reus
of the offence to have been satisfied. There was evidence before him about
    the nature of relationship between the appellant and the complainant. The
    appellant was a middle-aged man experienced in the selling of sexual services and
    the complainant was an impressionable and inexperienced teenager. The appellant
    had some financial means and resources, whereas the complainant had none. The
    appellant was involved in drug trafficking with Mr. Richards, whom the
    complainant sought to please and who benefitted financially from the sale of
    the complainants sexual services. The appellants drug customers included sex
    workers. Arguably, a reasonable inference from the nature of the relationship
    between the appellant and the complainant is that the appellants conduct
    impacted the complainants state of mind, and the appellant accordingly
    exercised influence over her movements when he coordinated and provided her
    with the means to provide sexual services for consideration.

[36]

However, this outcome is not assured. The
    relationship between the complainant, Mr. Richards, and the appellant was  to
    put it mildly  complex. The trial judge approached the complainants and Mr.
    Richards evidence, minimizing Mr. Richards involvement and implicating the
    appellant as the main facilitator of the sex work, with great caution. While
    the evidence could support a finding that the appellant exercised influence
    over the movements of the complainant under s. 286.3(1), given the trial
    judges finding that the appellant did not
encourage
the appellant to sell her sexual services for consideration in relation to the
    separate charge of recruiting, holding, concealing or harbouring the
    complainant contrary to s. 286.3, and the trial judges cautious approach to
    the complainant and Mr. Richards evidence, it is unclear that, having regard
    to the nature of the relationship between the appellant and the complainant and
    the impact of the appellants conduct on the complainants state of mind, the
    trial judge would have found the appellant exercised influence over the
    movements of the complainant. We say this appreciating that there is a
    difference between encouraging someone to sell sexual services for
    consideration and exercising influence over the movements of a person who
    offers or provides sexual services for consideration.

[37]

We turn to the conviction under s. 286.4.

VI.

THE CONVICTION UNDER S. 286.4

[38]

We agree with duty counsel that the trial judge
    erred by convicting the appellant under s. 286.4 on a theory of liability
    disavowed by the Crown, without giving him notice and the opportunity to
    respond to the appellant, and that this resulted in prejudice.

[39]

The closing submissions were made in writing. In
    its submissions, the Crown argued that the appellants position that he allowed
    the complainant and Mr. Richards to use his Backpage account does not make
    sense and cannot be accepted. Relying on the evidence of the complainant and
    Mr. Richards, the Crowns theory was that the appellant used his own Backpage
    account to post ads for the complainant. That is, he actually committed the
    offence in s. 286.4.

[40]

The appellants conviction under s. 286.4 rests
    on the trial judges finding that the appellant permitted Mr. Richards, upon
    request, to use the appellants phone and Backpage account to advertise sexual
    services to be provided by the complainant for consideration. In other words,
    the trial judge found that the appellant aided Mr. Richards to commit an
    offence under s. 286.4.

[41]

The appellants reply submission responded to
    the Crowns argument that he had posted the ads. Duty counsel submits that the
    appellants trial counsel did not engage on the issue of party liability in its
    reply to the Crowns written submissions because the Crown had disavowed that
    theory of liability. Duty counsel further submits that there is a strong
    argument that the
mens rea
requirement for aiding was not satisfied.

[42]

Crown counsel does not take issue with duty
    counsels characterization of events. However, relying on
R. v. Groot
(1998),
    41 O.R. (3d) 280 (C.A.), affd [1999] 3 S.C.R. 664 and
R v. Pickton
, 2010
    SCC 32, [2010] 2 S.C.R. 198, she argues that a conviction can rest on a
    different theory of liability from that advanced by the Crown and that the
    appellant suffered no unfair prejudice because the appellants own evidence
    raised the route to liability relied upon by the trial judge. Further, she submits
    that additional submissions would not have made a difference, given the
    appellants evidence.

[43]

We reject Crown counsels arguments.

[44]

In
R. v. Grandine
, 2017 ONCA 718, 355
    C.C.C. (3d) 120, this court held that in introducing a new, alternative, theory
    of liability in response to a jurys question, without affording the accused an
    opportunity to make a further address to the jury, orally or in writing, the
    trial judge compromised the fairness of the trial. The trial judge similarly
    erred in this case by adopting a theory of liability disavowed by the Crown
    without providing notice and an opportunity to respond to the appellant.

[45]

This case is different from
Groot
and
Pickton
.

[46]

In
Groot
, the court concluded that the
    accused did not suffer unfair prejudice as a result of a conviction for common
    assault based on a single impact when the Crown had stressed a theory of
    multiple blows. While the Crown relied on the multiple blow theory this court
    noted, at para. 21, that it could not be said that the Crown expressly
    rejected any other theory of liability. The fundamental issue was whether the
    force used was intentional or accidental; the defence position was that the
    force used was accidental.

[47]

In
Pickton
, the Crowns theory was that
    the accused was the sole perpetrator. The Supreme Court held that the accused
    was not unfairly taken by surprise and no miscarriage of justice was occasioned
    when, in response to question from the jury, the trial judge amended his
    instructions to include an instruction on party liability. The defence knew
    that the co-principal theory of liability would be left with the jury. The
    defence theory itself had put the participation of others at issue and the
    accuseds statements to the police, although argued by the defence as raising a
    reasonable doubt that he was the killer, could also lead to the conclusion that
    he acted in concert with others.

[48]

In this case, the defence was taken by surprise.
    The Crown disavowed the appellants theory of fact in its written submissions
    and, in doing so, implied that theory was exculpatory. The appellant provided
    further argument in support of that factual theory, unaware that the trial
    judge would ultimately consider imposing liability on a legal basis implicitly disavowed
    by the Crown. The defence was thereby deprived of an opportunity to respond to
    the
legal

issues implicated by its factual
    theory, namely whether party liability was available in the circumstances.

[49]

In
R. v MacDonald
, 2018 ONCA 369, 360
    C.C.C. (3d) 494, LaForme J.A., writing for the court, explained that the term
    prejudice in the curative provision in s. 686(1)(b)(iv) of the
Code
includes prejudice in the broader sense of prejudice to the appearance of the due
    administration of justice.

[50]

In
MacDonald
, counsel were not
    permitted to make oral submissions at the conclusion of a dangerous offender
    hearing. The court held that, subject to certain exceptions, s. 650 gives an
    accused the right to be present in court during the whole of his trial,
    including closing arguments. LaForme J.A. for the court wrote, at para. 46,
    that [i]f a trial judge requires written argument as a first step in the
    argument process, the trial judge must allow counsel, after a written argument
    has been exchanged, to make oral arguments in the presence of the accused to
    supplement, correct, or otherwise amplify the written argument.

[51]

In
MacDonald
, the court inferred that
    counsel were satisfied with the content of the written argument and accepted
    that, arguably, oral submissions would have had no meaningful impact on the
    written submissions made by counsel. However, after explaining the term
    prejudice in s. 686(1)(b)(iv) includes prejudice in the broad sense discussed
    above, the court concluded, at para. 53, that, unless there are exceptional
    circumstances, s. 686(1)(b)(iv) will not save a breach of s. 650(1) caused by
    the absence of the accused during closing arguments at the conclusion of
    dangerous offender proceedings. The court found that the offenders exclusion
    undermined the appearance and the reality of the due administration of justice
    and was not saved by the curative provision.

[52]

In
Grandine
, the court concluded that
    the procedural error in permitting the jury to consider an alternative theory
    of liability that arose after submissions were made was sufficiently grave to
    result in the denial of a fair trial, causing a miscarriage of justice. The
    same holds true in this case.

[53]

Here, where closing submissions were made in
    writing, the trial judges adoption of a theory of liability disavowed by the
    Crown without providing notice and an opportunity to respond to the appellant
    undermined the appearance of the due administration of justice. This is so
    whether or not the additional submissions would have made a difference. We are
    not of the opinion that no substantial wrong or miscarriage of justice has
    occurred or that the appellant suffered no prejudice as a result of these errors.
    The trial judges failure to provide notice and an opportunity to respond to
    the appellant cannot be saved by the curative proviso.

VII.

DISPOSITION

[54]

For these reasons, the appeal is allowed a new
    trial is ordered.

Released: AH JAN 27 2021

Alexandra
    Hoy J.A.

Gary
    Trotter J.A.

David
    M. Paciocco J.A.


